equity, and I apprehend that it has not, that the [cessary. If it comes into existence afterwards it freight of a voyage that is intended to be made, is affected, in equity, at once by the lien stipualthough not an existing voyage, may not be as-lated for. There is no doubt that the principles signed in equity. In Mitchell v. Winslow (2 illustrated by the foregoing decisions are appliStory Rep. 631), the Court sustained the validity cable to cases of sales, absolute assignments and of a mortgage of all tools and machinery which mortgages. But owing to the peculiar character might be purchased, and all cutlery stock which of the instrument executed by Hulse in this case might be manufactured or purchased during a we have had much doubt whether they were period of four years from the date of the mortgage. applicable to this particular contract. The diffiIn the case of Holroyd v. Marshall (10 House of culty has been that while there is a distinct Lords Cases, 191), WESTBURY, L. C., said: pledge, in terms of present operation, of the "But if a vendor or mortgagor agrees to sell or interest of Hulse in the contemplated undertakmortgage property, real or personal, of which ing and partnership, there is no actual assignhe is not possessed at the time, and he receives ment and no provision for an absolute assignthe consideration for the contract, and afterwards ment. An assignment is provided for, and we becomes possessed of property answering the de- could readily hold it to be an equitable assignscription in the contract, there is no doubt that ment, if it were not for the fact that the obligaa court of equity would compel him to perform, tion of Hulse to make it, only arose after and that the contract would in equity transfer demand made on the part of Collins, and no the beneficial interest to the mortgagee or pur- such demand was ever made. The obligation to chaser immediately on the property being ac- assign, therefore, not having arisen under the quired. This, of course, assumes that the sup- express terms of the contract, and there being posed contract is one of that class of which a no actual assignment, and no absolute or unqualicourt of equity would decree the specific per- fied agreement to assign, contained in the instruformance. If it be so, then immediately on the ment, we find, what seems to us, an insuperable acquisition of the property described, the vendor difficulty, under the authorities, in the way of or mortgagor would hold it in trust for the pur-treating this paper as an equitable assignment of chaser or mortgagee, according to the terms of the contract." Lord CHELMSFORD said: "At law property non-existing, but to be acquired at a future time, is not assignable; in equity it is so. At law, although a power is given in the deed of assignment to take possession of after-acquired property, no interest is transferred unless possession is actually taken; in equity, it is not dis-rish & Co., when that decree was made it was a puted that the moment the property comes into existence the agreement operates upon it."

Hulse's interest in the proposed partnership. We think also it is not practicable to regard the indebtedness of Hulse to George D. Parrish's estate as a partnership debt. Whatever might have been its quality in this respect prior to the decree finally made in the litigation for the settlement of the affairs of the firm of Price, Par

several as well as a joint judgment against Hulse's executor. We do not see how we can go behind that decree in this case, to inquire into the original character of the indebtedness or into the reasons for making it several as well as joint. It is the final judgment of a Court of competent jurisdiction having the parties and the cause before it.

These principles have been recognized and enforced in this Court. In Mc Williams v. Nisly (2 S. & R. 518), GIBSON, J., said: "In equity a grantor, conveying land for which he had no title at the time, shall be considered a trustee for the grantee, in case, at any time afterwards, he should acquire title." In Chew The question then recurs, can the lien of v. Barnet (11 S. & R. 391), it was said: "The the appellant be enforced as a technical pledge facts presented constitute the ordinary case of a of Hulse's interest in the partnership? His conveyance before the grantor acquires the equity is very great. The testimony proves title, in which the conveyance operated as an distinctly that the money loaned by him to agreement to convey, which, when the title has Hulse went directly into the partnership, and been subsequently acquired, may be enforced in formed part of its capital, and therefore was the chancery." In Bayler v. The Commonwealth means, the sole means, of producing the fund to (4 Wright, 43), STRONG, J., says: "But though be now distributed. At the time it was loaned a conveyance of an expectancy as such is impos- it was upon a distinct and absolute pledge of sible at law, it may be enforced in equity as an Hulse's interest in terms of present operation. executory agreement to convey if it be sustained It could not operate immediately because the by a sufficient consideration. This has often subject of the pledge was not then in existence, been decided." It is unnecessary to prolong but, as we have heretofore seen, that circumthese citations. They prove clearly that the ex-stance is, in equity, immaterial, and it became istence of the subject of the pledge at the time operative as soon as the interest was created. It the contract of pledge is made is not at all ne- is effective therefore so far as such a pledge of

such a subject can be effective. Is it sufficiently [tive without a further act of the pledgor. The so to give the appellant the money which is the distinction is doubtless refined, but it appears to product of the interest pledged as against the be substantial. There is, however, a class of appellee? The appellee is not a purchaser. He cases in which it is disregarded. They are cases is but a creditor and he has not the rights which in which the possession of the pledge is, by the could be asserted by a purchaser for value and agreement of the parties, to remain with the without notice. He is not a creditor subsequent pledgor. It is held that, as the pledgor is bound to the creation of the partnership, but anterior notwithstanding this provision of the contract, thereto, and therefore cannot assert that his so all are bound who claim under him except credit was given on the faith of the apparent ownership of this interest by Hulse. He is not a creditor who had levied on the interest of Hulse and sold it upon execution and purchased it at such sale. He is but a general creditor of Hulse without any equity except such as all creditors of that class have upon the assets of their debtor. Notwithstanding all this he is entitled to share this fund pro rata with the appellant, unless the latter can sustain his claim of lien upon the fund.

purchasers for value and without notice. The doctrine has been applied in the case of specific chattels, and it would apply with much more force in the case of expectancies or intangible interests. Thus, in the case of Reeves v. Capper (5 Bing. N. C. 136), one Wilson, the captain of a ship, pledged his chronometer, which was then in the possession of the makers, to the Messrs. Capper, the defendants, who were the owners of the ship, in consideration of their advancing him £50, and allowing him the use The only difficulty that lies in the appellants' of the instrument during the voyage on which way in this respect grows out of the considera- he was about to depart. After the voyage he tion that possession of the subject of the pledge placed it at the makers, and there pledged it to is an almost universal requirement in the law of the plaintiff, for whom the makers, being ignopledge to perfect the pledgee's title. It may be rant of the pledge to the defendants, agreed to dispensed with in certain cases, but the current hold it. The money advanced by the defendants of the authorities is that in such cases there must not having been repaid, it was held that the be a substitute for it in the way of a transfer of property in the instrument was in the defendants. the title, in such manner that the pledgee can În point of fact the chronometer was delivered exercise a right of possession without any further by the makers to the defendants' clerk, who act of the pledgor. Formerly no distinction was immediately re-delivered it to the pledgor, and taken between a pledge and a mortgage of chat- it was contended by the plaintiff that the defendtels. They were both regarded as a security for ants having parted with their possession, had lost a debt, and the title of the pledgee was consid- their lien, but it was held that, as this was done ered as substantially the same in both cases. in accordance with the terms of the contract, In the case of Cortelyon v. Lansing (2 Caine's the lien was not lost. For this purpose, the Cases in Error, 200,) Chancellor KENT points Court said, that Wilson, the pledgor, could be out an important distinction which was then but regarded as the servant of the pledgees, and that recently observed, to wit, that in a pledge the his possession was their possession. But substangeneral property remains with the pledgor, and tially it was because the possession was in accordonly a special property passes to the pledgee, ance with the terms of the contract, that the lien and hence on a failure to redeem, the pledgee was enforced even against another bona fide has no right to sell or appropriate the pledge; creditor who had loaned his money upon the while a mortgage of a chattel passes the absolute pledge of the same chattel while in the control title subject to a defeasance, and upon a failure of the pledgor, and without notice of the preto redeem the title of the pledgee becomes per-vious pledge. In the case of Meyerstein v. Barfect. Not stopping to inquire whether this ber (L. Rep. 2 C. P. 38), WILLES, J., said: would be the law in Pennsylvania at this day, it" But in order to complete the pledge it is not is nevertheless the fact that a mortgage in its necessary that there should be an actual delivery ordinary form contains an absolute transfer or assignment of the title, with a provision for a defeasance upon payment of the debt added. In this respect, therefore, there being an actual assignment of the title, there is sufficient in equity to create an available lien in the mortga-structive delivery. It is not necessary that the gee. Nothing further remains to be done by the mortgagor to perfect the mortgagee's title. But in the case of a bare pledge, without an assignment, or at least an unqualified agreement to assign, the title of the pledgee seems to be defec

of the chattel to the pledgee; it is sufficient, as was decided in Reeves v. Capper (5 Bing. N. C. 136; E. C. L. R. Vol. 35) (6 Scott, 877), and the other cases to which reference was made in the course of the argument, if there be a con

subject of the pledge should actually pass from the hands of the pledgor to those of the pledgee. The property in the goods may pass, even though they remain in the possession of the pledgor, provided they do so by virtue of a contract

between the parties which makes the custody of proceeds thereof are expressly, by the agreement the pledgor the custody of the pledgee."

of the parties, 'pledged and hypothecated' as In the case of Fletcher v. Morey (2 Sto. collateral security for the advances." Rep. 555), James Read & Co., of Boston, agreed "But it is said that the agreement, if enforced, with Fletcher, Alexander & Co., of London, by will operate as a fraud upon the creditors of a written agreement, that the latter firm should Read & Co., under their bankruptcy, and indeed, honor bills drawn on them in payment of goods that an agreement of this sort, so far as respects purchased for Read & Co., and, to secure creditors, is void, as against the policy of the Fletcher, Alexander & Co., it was agreed that law and in derogation of the rights of creditors. all the property purchased by means of credit, Now, it is not pretended, nor even suggested and the proceeds thereof, "and the policies of that any fraud was in fact contemplated by the insurance thereon, together with the bills of lad-parties or any of them upon the creditors. The ing, are hereby pledged and hypothecated to transaction was bona fide, for a valuable consithem as collateral security for the payment as deration and for future advances, to promote the above promised, and held subject to their order commercial business of the firm of Read & Co., or demand, with authority to take possession and and not to withdraw any of their existing funds dispose of the same at their discretion for their from their creditors. .. How then it is security or reimbursement."against the policy of the law I confess myself unGoods were purchased for Read & Co., and able to perceive, unless we are prepared to say bills drawn on and accepted by Fletcher & Co. that taking collateral security for advances upon to pay for them. Read & Co. became bankrupt, existing or future property on the part of a credsome of the goods came to the assignees in itor, without taking possession of the property at bankruptcy, and some to Read & Co., for which the same time or when it comes in esse, is per se the bills of lading were received by them and fraudulent. Possession is ordinarily indispensaindorsed to the plaintiffs, who filed a bill against ble at the common law to support a lien, but the assignee to have a lien declared in their favor even at the common law it is not absolutely inagainst all the goods and the proceeds of such as dispensable in all cases. This is shown by the were sold. The Court sustained the bill, hold- recent case of Dodsley v. Varley (12 Adolph. & ing that the plaintiffs were entitled to recover on Ellis, 632), where goods had been sold and detheir contract of pledge, although, as to some of posited in the warehouse of a third person for the goods, they never had any kind of possession the vendee, but still it was understood between of them, and as to others to which they were the parties that the vendee was not to remove entitled to possession by virtue of the bills of them until payment therefor; and it was held lading, they had parted with it. STORY, J., by the Court that, although the warehouse must said, on p. 565: "This, then, being the estab- be considered as the vendee's warehouse, and he lished principle, the first question which arises in in the actual possession of the goods, yet, consistthe case is, whether there is any equitable lien or ently with this, the vendor had, not what is comright, or claim, under the agreement which monly called a lien determinable upon possession, ought to be enforced specifically in equity against but a special interest, sometimes, but improperly, the shipments made to and for Messrs. Read & called a lien, growing out of the original ownerCo., or the proceeds thereof, so far as they can ship, independent of the actual possession, and be distinctly traced in the hands of the assignee, consistent with the property being in the vendee. and upon this point I entertain no doubt what- What is this but allowing the existence of an ever. In equity there is no difficulty in enforc- equitable lien, notwithstanding the possession of ing a lien, or any other equitable claim, consti- the goods is parted with, good between the partuting a charge in rem, not only upon real estate, ties, and good as to all persons not claiming unbut also upon personal estate, or upon money in der the vendee as bona fide purchasers for a the hands of a third person, whenever the lien valuable consideration without notice? But I or other claim is a matter of agreement, against take it to be clear, that not only liens, but mortthe party himself and his personal representa-gages of personal property, are perfectly good tives, and against any persons claiming under and supportable between the parties and against him, voluntarily or with notice, and against assignees in bankruptcy, who are treated as volunteers; for every such agreement for a lien or charge in rem constitutes a trust, and is accordingly governed by the general doctrine applicable to trusts." "So that, as a matter of trust directly growing out of and provided for by contract, the present case falls directly within the principle above stated. The goods and the

creditors, where there is no fraudulent intent and the possession remains in the owner or mortgagor of the property, and is consistent with the deed and the arrangements made between the parties." Judge STORY concludes his view of the case thus: "So that the possession of the property by Messrs. Read & Co. in the present case is not, in my judgment, a badge of fraud, or against the policy of the law, or in any

be upon the lands or grounds where the bridge was being built. It was held, that by necessary implication, the agreement for the lien included property which was upon other lands where the work was being carried on in the popular sense, so that the company might be considered as having a possession of the articles there placed. In both of these cases the chattels belonged to and were in the possession and use of the debtor, and might at any time be removed by him, but the lien was enforced chiefly on the ground of the agreement, and partly because there was a mixed possession of both debtor and creditor. In Macomber v. Parker (14 Pick. 497), which was a case of a pledge by a brickmaker, of bricks to be made in the future, to the lessees of the yard to secure them for advances, the lien was enforced against creditors of the pledgor. The Court said, on page 500: "It was an agreement for the pledging of the bricks as they should be made. It is true that where the property is to be thereafter acquired it is not strictly and technically a pledge; it is rather an hypothecation; but when the title is acquired in futuro, the right of the pledgee attaches immediately upon it." Here the brickmaker was in possession of the yard, and hired the men and manufactured the bricks, and he was also the agent of the plaintiffs, who were assignees of the lessees, for selling the bricks. In all respects he had the actual possession of the premises and the bricks, but the Court considered that, with the agreement for a lien and the technical legal possession of the assignees of the lessees, there was a sufficient basis for sustaining the lien, although against the creditor of the pledgor, who was to all intents and purposes the owner and in possession of them.

manner to be deemed inconsistent with the just rights of their creditors; and therefore the agreement is binding and valid to give a lien or equitable charge upon the property in the hands of the assignee, fit to be enforced in the present suit." In other words, although this was a case of a pledge of personal chattels, wherein, in all ordinary cases, possession by the pledgee is indispensable to the validity of the pledge, and the title to and possession of the goods agreed to be pledged had passed to the pledgor, the mere agreement for such possession sufficed to protect the lien, and was good against the parties and the general creditors of the pledgor. The same doctrine was held and applied in the case of Mitchell v. Winslow (2 Sto. Rep. 630), in which Judge STORY, on page 644, said: "It seems to me a clear result of all the authorities that whenever the parties, by their contract, intend to create a positive lien or charge either upon real or personal property, whether then owned by the assignor or contractor, or not, or if personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto, against the latter, and all persons asserting a claim thereto, under lien, either voluntarily or with notice or in bankruptcy." He then proceeds to answer the argument that the possession of the property remaining in the mortgagor would operate as a constructive fraud upon the rights of creditors. After showing it was inapplicable in cases of mortgages upon real estate, he says: "And as to the chattels, there is as little question that where a mortgage or a lien is created on chattels by contract, it is entirely competent for the parties to agree that the possession and use thereof shall be retained by the mortgagor until the breach of the condition, or by the debtor, until the creditor shall assert his rights against it as security for the debt." Although this was the case of a mortgage of chattels, the decision was not put upon the ground that there was a trans-requirement may be dispensed with if such is the fer of the title, but upon the broader ground of agreement of the parties, and the lien of the an agreement for the possession by the owner, pledgee may be enforced by virtue of the conand a lien for the lender, and in all such cases it tract. It seems to us that this doctrine applies was held the creditor could avail himself of his with much greater force to cases where the sublien against creditors of the debtor, by force of ject of the pledge is a mere intangible right, inthe agreement for the lien. Judge STORY cites capable of delivery or of manual occupancy, and two cases, both of which were agreements for especially where it is to come into existence liens merely, though in one (Crowfoot v. Lon-after the contract of pledge is made, and where don Dock Co., 2 Cromp. & Mees. 637) there was the personal effort of the pledgor is necessary a mixed possession of the chattels, both by the both to its subsequent existence and its actual creditor and the debtor. In the other (Haw-maintenance. All these features concur in the thorne v. Newcastle and North Shields Railway present case. The thing pledged is an interest Co., reported in 3 Ad. & Ell., N. S. 734, note b), the lien was limited to certain machines, implements, and materials (used by and belonging to a contractor in building a bridge), which might

The foregoing cases all relate to liens upon specific chattels, as to which it is almost universally necessary that possession should accompany the pledge in the hands of the pledgee in order to validate his lien. But we have seen that this

in a partnership to be created in the future. Such an interest is described by SHARSWOOD, J., in Whigham's Appeal (13 P. F. S. 198), as “an incorporeal, intangible thing; a right to an ac

February 1, 1884.

McCaffrey's Appeal.

ness will not be enjoined unless serious injury results therefrom-Costs in equity.

A Court of Equity may in its discretion divide the costs of a proceeding between the parties.

Appeal from the Common Pleas No. 2, of Philadelphia County.

count and to their share of the balance after all | Jan. '84, 80. the debts are paid, and all equities between the partners are adjusted." By the very terms of the paper of 23d of November, 1875, this pro- Injunction-Noise-Vibration-A lawful busiposed partnership was to be created by the act of Hulse and others, and of course it could only be maintained by the joint acts of himself and his partners. Now, it is an inevitable inference, Where one carrying on a lawful business which cannot both from the character of the transaction and be profitably conducted in any other way, incidentally inthe words of the paper, that it was the un-flicts an injury upon others, a Chancellor is not justified in interfering by an injunction unless the evidence of subderstanding and agreement of Hulse and Collins, stantial injury to the complainant is so clear as not to adthat Hulse should be in possession of this part-mit of a reasonable doubt. nership interest, because Hulse contracts that he will assign and deliver possession of the interest to Collins at any time on demand of the latter, and thereafter Collins should assume and execute the business of the partnership in place of Hulse. All this presupposes the actual,. primary and continuous possession of the interest by Hulse until the assignment is made. Such being the case, we have no difficulty in reading this paper as an actual present pledge by Hulse to Collins of a partnership interest which he was to acquire in the future with the money loaned him by Collins, that Hulse was to be in possession of the interest until such time as Collins might demand an assignment of it, and, upon such demand being made, Hulse was to make the assignment, and "to deliver possession of all said interest" to Collins. This being so, the interest was subject to the operation of the pledge in equity from the moment it came into existence. It was binding upon Hulse, notwithstanding his possession, because such was his contract, and for that reason it is binding upon all claiming under him, except purchasers for value and without notice.be borne equally by both parties; that the bill be The appellee's testator was not such a person, but a mere general creditor, whose right is inferior and subordinate to that of the appellant. We hold, therefore, that the appellant is entitled to take out of the fund for distribution the sum of $10,000, with interest from the date of the loan, by virtue of his equitable lien upon Hulse's partnership interest, the proceeds of which constitute the fund. As to the remaining $2410 of his claim, he is an unsecured creditor, and can only take a dividend pro rata with the appellees and the other creditors, if there are any.

Bill in equity, by J. Carroll McCaffrey and wife against James Elverson, to restrain respondent from carrying on a printing house, at the northwest corner of Ninth and Spruce streets. The defendant filed an answer, and the cause was referred to an Examiner, and subsequently to a Master, who reported a decree perpetually enjoining respondent from running the presses in his building between the hours of eight o'clock P.M., and six o'clock A.M., and that the doors and windows on the Spruce Street side of the building be closed whenever the machinery and presses were in operation. To this report exceptions were filed, and the Court after argument entered a decree as follows: "And now October 13, 1883, it is ordered, adjudged, and decreed that each party pay their own costs, and that the costs of the Commission appointed by this Court

retained, with leave to apply for a further order, and that the exceptions of defendant be sustained and the injunction refused."

HARE, P. J., filed the following opinion, in which the facts are fully set forth, viz:

"The respondent in this case carries on his business as the printer and publisher of a weekly newspaper in a building which he erected for the purpose at the northwest corner of Spruce and Ninth, and the complainant resides at 915 Spruce Street, two doors above. The bill avers that the respondent's presses are run day and night, and that the noise and vibration resulting from this cause, and from the working of the steam engine by which they are set in motion, disturb the repose and quiet of the complainant's dwelling, prevent sleep, impair the health of the occupants, and tend to lessen the market value of his property. He therefore prays for an injunction to restrain the continuance of the respondent's business in its present form.

"Various questions arise on the pleadings and evidence, which may be summed up under the following heads: Did the respondent use due care