(107 A.) New Jersey statute of wills passed in 1850. P. L. 1850, p. 280. The statutes regulating wills in other states quite generally exhibit the same feature. In this manner the statute law of England and America was made to conform with the natural habits and customs of men. strument which he publishes as his will, is [ognized. The same course was taken in the not an acknowledgment of the signature unless the witnesses see or are able to see the signature. A brief glance at the history of our statutes regulating devises and testaments throws light, I think, on this question. The fifth section of the statute of frauds (29 Car. II, c. 3) abolished verbal devises, and provided that all devises of lands "should be in writing and signed by the party so devising the same, or by some other person in his presence and by his express direction, and should be attested," etc. After a period of some uncertainty, the English courts appear to have finally decided that an acknowledgment of the signature to the witnesses satisfied the statute. 1 Jarman on Wills (R. & T. Ed.) c. 6, § 1, p. 208. The New Jersey act of 1713 required devises to be in writing and to be "signed and published by the testator in presence of three subscribing witnesses." Bradford, p. 35, Elmer's Dig. 595. It was settled by our courts that the exhibition of the signature by the testator to the witnesses, and a positive declaration by him that the same was his own signature, did not meet the requirements of the statute that the signature must actually be made in the presence of the witnesses. Den v. Mitton, 12 N. J. Law, 70 (1830); Den v. Matlack, 17 N. J. Law, 86 (1839); Combs v. Jolly, 3 N. J. Eq. 625 (Prerog. Ct. 1835). It will be observed that the English statute of Charles allowed an alternative to the signature of the testator in the presence of the witnesses, viz., the writing of the testator's signature by some other person in his presence, and by his express direction. The New Jersey statute provided no alternative. Neither statute expressly recognized the acknowledgment of the signature as the equivalent of making the signature in the presence of the witnesses. The establishment of If by any construction of our statute the declaration by a party attempting to make a will to the witnesses whom he called in to the effect that the instrument had been signed by him, when in fact the witnesses could not possibly see any signature, should be held to be an acknowledgment of the signature, it seems to me quite evident that a third method of having a testator's signature attested would be established, not by any means equivalent to the others, but far less forceful and significant as a testamentary ceremony. No New Jersey decision dealing with the subject under consideration has been cited by counsel or has in any way come to my knowledge. The following are a few only of the decisions of courts of other jurisdictions which support the view which I have expressed: Lewis v. Lewis, 11 N. Y. 220 (1854). The New York statute of wills construed in this case is, as to the matter now under consideration, the same as our own. The case seems to be on all fours with the one at bar. The testator folded the will so that the witnesses could not see whether it was signed by him or not. The opinion of the court (11 N. Y. 225) contains the following paragraph: "If the party does not subscribe in their presence [the presence of the witnesses], then the signature must be shown to them and identified and recognized by the party, and in some apt and proper manner acknowledged by him as his signature." In the Matter of the Probate, etc., of this equivalent was reached in England by Mackay, Deceased, 110 N. Y. 611, 18 N. E. construction, no doubt recognizing the es433, 1 L. R. A. 491, 6 Am. St. Rep. 409 (1888). tablished custom supported by convenience In this case Judge Earle delivered the and common sense of having a signature to unanimous opinion of the New York Court of a document attested by witnesses after the Appeals, directly holding that, where the maker of the signature has exhibited the same to the witnesses and declared that the testator so folded the instrument that the signature was his. There is an exact equiva-witnesses could not and did not see his sig lence in point of fact. No doubt cases of hardship were liable to arise under the New Jersey statute which ignored a wellsettled custom pertaining to the execution of solemn instruments and the exact equivalence of the two methods by which a party executing an instrument could procure that fact to be attested by witnesses. When the English law of wills covering devises of real estate and bequests of personalty was passed in 1837, the propriety of allowing the exhibition of the signature and contemporaneous acknowledgment of it as the equivalent of signing was expressly rec nature, or any part thereof, the will was not properly executed, however distinctly it was published. The court held (110 N. Y. 614, 18 N. E. 434, 1 L. R. A. 491, 6 Am. St. Rep. 409), that "There would undoubtedly have been a formal execution of the will in compliance with the statute if the witnesses had at the time seen the signature of the testator to the will." This decision is directly in point. In this case the English Court of Appeal unanimously sustain the probate court and hold that an acknowledgment of a signature | an auction sale seized by a constable under a to an instrument purporting to be a will is distress warrant issued by defendant, which reinsufficient unless the witnesses are able to see fused to deliver up such goods upon demand by the signature. Master of Rolls Jessel ap- plaintiff, defendant having a constructive posproves Mr. Jarman's proposition that "there session by its agent, the constable is a proper is no sufficient acknowledgment unless the party to the action. witnesses either saw or might have seen the signature, not even though the testator should expressly declare that the paper to be attested by them is his will," and then adds his opinion that "It is not sufficient even if the testator were to say, 'My signature is inside the paper,' unless the witnesses were able to see the signature." RIGHT OF ACTION Under 3 Comp. St. 1910, p. 4368, § 2, replevin lies not only for the unlawful taking of the goods, but also for wrongful detention. 3. FRAUDULENT CONVEYANCES 47-SALES IN BULK ACT-CONSTRUCTION - PRIVATE SALE-PUBLIC SALE. The Sales in Bulk Act (P. L. 1915, p. 377), which is similar to the act of 1907 (P. L. 570), and provides that the sale of all or a large part of a stock of goods otherwise than in the course of trade shall be void as to a creditor of the seller, unless the buyer makes inquiry of the seller as to his creditors, and notifies them of and not to sales by public auction. his intended purchase, applies to private sales One of the most recent elaborate discussions of the subject in hand may be found in the opinion of Judge Loring, speaking for the Massachusetts Supreme Court in Nunn v. Ehlert, 218 Mass. 471, 106 N. E. 163, L. R. A. 1915B, 87 (1914). The Massachusetts statute has by construction been held to require, as the alternative to the making of the 4. STATUTES 239-STRICT CONSTRUCTION. signature of the testator in the presence of An act which is drastic in its provisions on the witnesses, the acknowledgment of the restriction of free alienation of property should signature by him in the presence of the wit-be strictly construed, and not extended to a nesses, thus giving as much force in New transaction which does not come clearly within Jersey to Massachusetts decisions as can be attributed to decisions of the English courts or the New York courts. The five judges of the Massachusetts court who heard the case last cited hold directly that "A will is not attested lawfully by a subscribing witness, if the person who intended and attempted to execute the instrument as his will concealed his signature from the subscribing witness so that he could not see it or know that it was there." Judge Loring states (218 Mass. 472, 106 N. E. 164, L. R. A. 1915B, 87) that The case "presents the question whether a will is duly attested when the signature of the deceased is hidden from the witnesses when they attest and subscribe the will." It is this question which the court unanimously answers in the negative. I agree with the Massachusetts court in disregarding the Michigan case In re Dougherty Estate, 168 Mich. 281, 134 N. W. 24, 38 L. R. A. (N. S.) 161, Ann. Cas. 1913B, 1300, in which it appears an "opposite conclusion" reached. was The decree of the Hudson orphans' court will be affirmed. (93 N. J. Law, 111) its terms. 5. FRAUDULENT CONVEYANCES 214-LAND LORD'S LIEN - NATURE - SUPERIORITY OVER If a landlord who has acquired a lien upon his tenant's goods before they were sold by the tenant at public auction be included in the class of creditors intended in the Sales in Bulk Act (P. L. 1915, p. 377), he does not thereby secure any superior right to that possessed by general creditors. 6. LANDLORD AND TENANT 270(18)-DISTRESS WARRANT-RIGHTS OF PURCHASER OF TENANT'S Goods. Where the distress warrant was not issued against the tenant's goods until after they had been sold by the tenant at public auction, and no levy was made until some time later, the landlord acquired no lien under the distress warrant on the goods as against a purchaser thereof at the public sale. Appeal from District Court of Orange. Action by Isidore Schwartz against the King Realty & Investment Company, a corFrom a judgment for plaintiff, poration. defendant appeals. Affirmed. The state of the case agreed upon between counsel of the respective litigants shows that some time prior to June, 1918, the Schultz Printing Company made and execut SCHWARTZ v. KING REALTY & INVEST- ed a chattel mortgage on the assets of its MENT CO. (Supreme Court of New Jersey. June 3, 1919.) 1. REPLEVIN 22-PARTY DEFENDANT-CONSTRUCTIVE POSSESSION. In replevin by the buyer against the seller's landlord for goods purchased by the buyer at printing business. Prior to the above date one Van Poznak, a duly licensed auctioneer, was employed by the Schultz Company to sell all its assets at public sale. The auctioneer inserted in the Newark newspapers notices of the sale of the property of the printing concern, and distributed the news (107 A.) papers containing the notice among the compliance with the law, the defendant trade who might be interested in making was not entitled to succeed on either mopurchases. On the date above mentioned tion to nonsuit or for a direction of a findthe sale took place, and was conducted by the auctioneer, and was largely attended, and the plaintiff who was present purchased a part of the assets at the sale, for which he made payment to the auctioneer. The King Realty & Investment Company, the defendant, was landlord of the premises occupied by the printing concern. On June 20, 1918, it issued a distress warrant for $300, being rent for the months of March, April, May, and June, 1918, against the goods and chattels of the Schultz Company, and put the warrant into the hands of a constable to distrain on such goods and chattels, but no actual distraint was made until July 22, 1918, when the constable took possession of the goods and chattels purchased by the plaintiff at the auction sale and refused to deliver them to him unless the claim of rent was satisfied, which the plaintiff refused to do. After the auction sale the chattel mortgage was paid. The plaintiff made a demand upon the defendant company to deliver up to him the possession of the goods purchased at the auction sale which demand was refused. The plaintiff thereupon brought his writ of replevin, and, having filed a bond in ac cordance with the statute, the sergeant at arms took possession of the property, and delivered it to the plaintiff. At the close of the plaintiff's case a motion for nonsuit was made on the grounds that: First, the action was instituted against the wrong party, inasmuch as the defendant company did not have possession of the goods in question, and the real defendant should be the constable; and, secondly, that inasmuch as no attempt had been made to comply with the provisions of the Sales in Bulk Law, the sale by the Schultz Printing Company to Isidore Schwartz was void as against creditors, and that the defendant company was a creditor, and that the distress proceedings were instituted before the expiration of 90 days from the date of the sale by the printing company. The motion was denied, to which denial an exception was taken. No testimony was offered by the defendant, and thereupon in its behalf a motion was made on the same grounds for the direction of a judgment in its favor, which motion was also denied, and a judgment for possession was entered. The trial judge found as a matter of fact, that the constable acted as agent for defendant company when making the distraint under the distress warrant, and that possession by the agent was possession by the principal. The trial judge further held that the compliance with the Sales in Bulk Law was an affirmative defense, and, no proof being offered by the defendant that there was no ing in its favor. The trial judge also held that the Sales in Bulk Law was inapplicable to the facts of the case as they appeared before him. BERGEN, KALISCH, and BLACK, JJ. before E. R. McGlynn, of Newark, for appellant. Furst & Furst, of Newark, for respondent. KALISCH, J. (after stating the facts as above). [1] The position taken by counsel of appellant that the defendant was not a proper party to the action, and therefore should have been either a nonsuit or judgment for defendant, is untenable. The case agreed upon concedes that the defendant issued the distress warrant and gave it to the constable to execute, which officer, under the authority of the warrant, took possession of the goods and chattels purchased by the plaintiff at the auction sale. It is further conceded that a demand to deliver up these goods and chattels to the plaintiff was made by him upon the defendant which the defendant refused. There was sufficient testimony before the trial judge of the exercise of dominion by the defendant, over the property to warrant a finding that it was in possession of the same. In law the defendant company was constructively in possession by its agent, the constable. It is not necessary that a defendant should have actual possession of the goods in order to maintain an action of replevin against him. If he exercises control over them, it is sufficient to uphold the action. Allen v. Crary, 10 Wend. (N. Y.) 349, 25 Am. Dec. 566. The legal rule, as stated in Cobbey on Replevin, p. 29, is: "Replevin is essentially a possessory action, and does not lie against one who is not either actually or constructively in possession." [2] It is well to observe here that in this state replevin lies not only for the unlawful taking of the goods, but also for unlawful detention. 3 C. S. p. 4368, § 2. [3] Another ground advanced by appellant's counsel and relied on for a reversal of the judgment below is that the plaintiff acquired no title to the goods purchased at the sale, because it was not made to appear that the Sales in Bulk Act was complied with. The state of the case discloses that the goods purchased by the plaintiff were sold to him at an auction sale which had been widely advertised, and was largely attended by prospective buyers. Whether the goods were sold by the piece or otherwise does not appear. The Sales in Bulk Act is entitled "An act [ Guided by this universal canon of statutory to prohibit sales of merchandise, goods and construction, we are unable to perceive the chattels in bulk in fraud of creditors." P. L. 1915, p. 377. This act in substance provides that the sale of the whole or a large part of the stock or merchandise, etc., otherwise than in the ordinary course of trade, and in the regular and usual prosecution of the seller's business or occupation shall be void against the seller's creditors, unless the purchaser shall in good faith and for the purpose of giving notice to each of the seller's creditors at least 10 days before the consummation of the sale (the purchaser having first inquired of the seller and received from him a list in writing of the names, places of business of, and indebtedness to each) of the time and place when and where the transfer is to be made to him, and when and where the consideration is to be paid. This section contains a proviso that no proceedings at law or in equity shall be brought against the purchaser to invalidate any such voidable sale after the expiration of 90 days from the consummation thereof. The statute which we are considering is practically the same as the act of 1907 (P. L. 570). It contains the same proviso. It will be noted that in the body of both acts it is declared that the sale in bulk, etc., shall be "void." In the proviso to the section the sale is termed "such voidable sale." In Dickinson v. Harbison, 78 N. J. Law, 97, at page 100, 72 Atl. 941, Mr. Justice Reed, speaking for this court, said: "The body of the act, as will be observed, declared that a sale should be void as to creditors unless certain things were done by the purchaser. The proviso, however, speaks of the sale as 'such voidable sale.' The word 'void' was used in the sense of voidable. The proviso itself shows that the sale was a nullity only when attacked by creditors within a certain period." In that case the learned justice raised a query as to the constitutionality of the act. But in the later case, Kett v. Masker, 86 N. J. Law, 97, 90 Atl. 243, the constitutionality of the act was raised, and this court held its provisions to be constitutional. The constitutionality of the act of 1915 has not been raised in the present case, and therefore we express no opinion upon it. At any rate we would feel bound to follow the opinion of the Supreme Court on a statute, of which the present is a copy, except for a few slight changes which do not affect the substance of it. [4] Because the act is drastic in its provisions and restrictive of the free alienation of property, it should be strictly construed, and not be extended to a transaction which does not come clearly within its terms. applicability of the statute to the facts of the present case. The goods of the Schultz Company were sold at a public, and not at a private, sale. The statute is plainly aimed at private sales of property, and not at public sales. Unless we adopt this view, the sale of one's goods and chattels at public auction conveys no title to the purchaser, though the sale and purchase are made in good faith. And in this connection it is difficult to comprehend how a purchaser at such sale can comply with the terms of the statute which require that a buyer shall make inquiry of the vendor and demand an inventory of him of his creditors and to send to each a ten days' notice of the buyer's intended purchase and the amount of consideration to be paid and the place where it is to be paid. It needs no further discussion to demonstrate how absurd it would be to attempt to fit these requirements of the statute to a purchase made at a public auction. Moreover, the Legislature, by the proviso referred to, contemplated judicial action by a competent tribunal, to invalidate any such voidable sale, by an action at law or a suit in equity initiated by a creditor of the seller. This situation is not present here. In the view expressed, it becomes unnecessary for us to consider the question argued, whether in the present proceeding the burden was upon the defendant to establish affirmatively that the provisions of the statute were not complied with by the purchaser. [5, 6] For the respondent it is argued that a landlord does not belong to the class of creditors contemplated by the statute under consideration. Assuming, for the purpose of the present case, that the landlord is included in the class, it does not thereby clothe him with any superior right to that possessed by a general creditor. The defendant must rest its right, if it has any, on its status as landlord and of having acquired a lien upon the goods purchased by the plaintiff before the purchase was made. By the state of the case it appears that the distress warrant was not issued against the goods and chattels of the tenant until a day after the sale was consummated, and no levy was made under the warrant until some time afterwards. It is therefore clear that the defendant acquired no lien under the distress warrant on the goods purchased by the plaintiff. Woodside v. Adams, 40 N. J. Law, 417; Bodell v. Real Securities Investment Co., 88 N. J. Law, 155, 95 Atl. 758, affirmed 89 N. J. Law, 708, 99 Atl. 337. The judgment of the court below is affirmed, with costs. (107 A.) CASSILLY et al. v. UNITED STATES FI- WASHINGTON & R. R. CO. DELITY & GUARANTY CO. ROUGHS. Y. BUR (Court of Appeals of Maryland, June 19, (Court of Appeals of Maryland. Jan. 16, 1919.) Appeal from Circuit Court, Montgomery County; Peter and Worthington, Judges. Action by Mary Belle Burroughs against the Washington & Rockville Railroad ComFrom a judgment for plaintiff, depany. fendant appeals. Affirmed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. William H. Talbott, of Rockville, for appellant. John A. Garrett and Charles W. Prettyman, both of Rockville, for appellee. The decision was affirmed, with costs, on appeal, in an opinion by BOYD, C. J. WHITCOMB v. ROGERS. (Court of Appeals of Maryland. Nov. 15, 1918.) Appeal from Circuit Court No. 2 of Balti Appeal from Superior Court of Baltimore more City; Ambler, Judge. City; Dobler, Judge. Action by Charles J. Rogers against Suit between Henry W. Wagner and the Monumental Brewing Company. From the James A. Whitcomb. From a judgment for judgment, there is an appeal. Affirmed. plaintiff, defendant appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Arthur L. Jackson, of Baltimore, for appellant. Sylvan Hayes Lauchheimer, of Baltimore (Fred S. Swindell, of Washington, D. C., on the brief), for appellee. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. William H. Surratt, of Baltimore, for appellant. Eli Frank, of Baltimore (Charles Lee Merriken and William L. Marbury, both of Baltimore, on the brief), for appellee. The decision of the lower court was af The decision was affirmed, with costs, in firmed, with costs, in an opinion by URan opinion by URNER, J. NER, J. |