are many questions of considerable practical interest involved in the discussion which will repay a careful reading.

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1. The precise point of the rights of adversary claimants to prosecute their claims against a receiver of the Court of Chancery, while acting in that capacity, is here very clearly stated. The doctrine as one of the established principles of chancery practice, is very clearly established, that Courts of Chancery will, in the language of Chancellor WALWORTH in Parker vs. Browning, 8 Paige 388, "where the property is legally and properly in the possession of the receiver," * "protect that possession, not only against acts of violence, but also against suits at law, so that a third person claiming the same may be compelled to come in and ask to be examined pro interesse suo, if he wishes to test the justice of such claim;" or, as is held in other cases, obtain leave to prosecute his claim against the receiver. But the exact point of the proper limitation to be applied to this doctrine is stated very forcibly in the principal case, and especially the distinction between suits for the value of personal property in the possession of the receiver, and those for the possession of the specific property. See Peck vs. Crane, 25 Vt. R. 146.

2. The question of the capacity of the mortgator of future acquired personal estate, to create a valid present property therein, is here examined with thoroughness, and discussed with great clearness and precision. The point is every day becoming more and more important, not to use any stronger expression; and we are sorry to feel that the American Courts do not seem, as yet, to have fully waked up to the magnitude of the interests involved in that and kindred questions. The public interest, and the necessities of business men, under the

pressure of commercial exigencies, generally outrun and take the lead of the Courts of justice, in moulding present means and appliances to the multiplying emergencies which an advancing civilization is constantly presenting. This is indeed the natural order of things, and when the Courts attempt to take the lead in law reforms of that character, it is not, as a general thing, so judiciously accomplished as when chiefly matured by the practical experi

ence of business men. But it has seemed to us that the time had fully come for the American Courts to recognise the power of a Court of Equity to give full effect to a contract of mortgage of future acquisitions of personal estate. The only possible embarrassment in giving effect to such contracts as contracts for a future mortgage, and in allowing them to take effect in presenti by way of trust, whenever such property is acquired, the mortgagor and future purchaser from the moment of acquisition, standing as the trustee of the mortgagee, consists in the want of visible, substantial possession in the mortgagee. But this will be effected through the registry so soon as such contracts are recognised as creating a valid subsisting equitable mortgage. This principle is fully adopted in the case of Holroyd vs. Marshall, 9 Jur. N. S. 213, decided by the House of Lords within the last year. The general question was there discussed at length, by the present Lord Chancellor WESTBURY, by Lord WENSLEYDALE and by Lord CRANWORTH, and all the English cases bearing upon the question, elaborately reviewed, and the following points held clearly established in the English law.

1. That at law a mortgage or sale of future acquired personal property, the mortgagor neither having acquired the thing or the agent of its production at

the time of making the contract, creates no valid subsisting opery. But even at law, if the future acquired property be the product of present property in the mortgagor, or what is expressed more briefly, as potentially, his property, as the wool growing on a flock of sheep, or the produce of a dairy, or a farm, or anything of that character, the contract of mortgage will take effect upon the property as soon as it comes into existence, and will be perfectly binding at law. And, on the other hand, where the contract is not understood to identify any particular property, so that it can be known to what it was intended to apply, it will have no binding effect, either at law or in equity. Mogg vs. Baker, 3 M. & W. 195.

2. But where the contract is of so specific a character that a Court of Equity would decree a specific performance, it will always create a valid, present interest in equity, which a Court of Chancery will enforce against any future incumbrancer, whether with or without notice. And in such cases it is not requisite, in order to protect the right of the mortgagee, that proof be made of any act on his part looking towards actual possession of the goods, or of their identification under the contract, or of any notice in fact to the subsequent incumbrancer at or before his interest attached.

It has been held that where the assignment is of future property entirely of an indefinite character, as of the future earnings of a ship not on a voyage then contemplated, but without reference to any particular voyage, that the contract remaining in force will attach to the property when it comes into existence, and may be made available by some new act of possession or identification, as Lord BACON's maxim has it, "novus actus interveniens." And

accordingly many contracts of this class contain a power to take possession of such future acquisitions. See Robinson vs. MacDonell, 5 Mau. & S. 228; Lunn vs. Thornton, 1 C. B. 379; Congreve vs. Evetts, 10 Exch. 298; Hope vs. Haley, 5 Ell. & Bl. 830-845. S. C., 34 Eng. L. & Eq. R. 189.

Some cases have been understood to favor the construction that some such future act of possession or identification was necessary in all cases, where property not in esse was attempted to be assigned, at least as against future incumbrances; or else that there should be distinct evidence of notice to the subsequent incumbrancer. Langton vs. Horton, 1 Hare 549; Whitworth vs. Gaugain, 1 Phill. 738.

But even this requisite has been repudiated in later and better considered cases. Lord ST LEONARDS, in Abbott vs. Stratton, 3 Jo. & Latt 603'; Whitworth vs. Gaugain, 3 Hare 416; and the same case affirmed by the Chancellor, ubi supra. Stress is indeed placed

by the Lord Chancellor in Metcalfe vs. The Archbishop of York, 1 Myl. & Cr. 547-555, upon the fact of notice to the subsequent incumbrancer. But that fact was declared unimportant in many of the cases already cited, and especially in the late case of Holroyd vs. Marshall.

2. This subject has been under consideration in numerous cases in the American Courts, affecting railway mortgages, and so far as appears no question has ever been made by those Courts in regard to the entire validity of such mortgages, even when made to cover the future accessions and acquisitions of the road; and as against subsequent incumbrances equally with the mortgagors in all cases where the corporations possessed full power to execute valid contracts of the character in question. Howe ts. Freeman, 14 Gray

R. 566; Pennock vs. Coe, 23 How. U. S. Rep. 117. See also Willink vs. Morris Canal & Banking Co., 3 Green. Ch. Rep. 402.

3. The franchise to build and operate a railway is an important property in itself, and whenever the power to assign such franchise as security for debt exists, it must necessarily carry with it all accessory and incidental acquisitions, which attach to the franchise, and constitute the structure and accessory fixtures, together with the rolling stock, which, although not in itself strictly a fixture, is obviously an indispensable adjunct or accessory, so that the right to create a valid incumbrance upon a railway, and its future accessions and acquisitions, in no sense contravenes any of the decisions, at law, wherein it has been held that no valid assignment of non-existing property could be made.

4. The question incidentally discussed in the principal case, in regard to the capacity of a railway company to create a valid lien, in equity at least, upon its roadway and other property, without any special legislative sanction, either directly or indirectly, through the means of either general or particular provisions of statutes, is one of so much uncertainty, under the existing state of the decisions, that very little definite and reliable information can at present be given in regard to it. Judging of the thing upon principle merely, we should not have supposed there was any inimicable obstacle to the creation of such a lien; but we have been more inclined of late than formerly, to the opinion that such a contract did require express or implied legislative sanction, independent of the mere creation of the corporation. The decisions in the English Courts, so far as the question has been raised there, which can hardly be said to have occurred in any very definite VOL. XII.-3

form, are all against any such power existing in railway corporations, except by the consent of the legislature. The assignment and transfer of the possession and use of these public works, which have engrossed almost the entire trade and transportation of the country, is held, in England, exclusively under Parliamentary powers, and does not seem to be considered as coming within the general discretion of Courts of Equity. Hence all contracts, looking towards the ultimate transfer of such use or possession, in contingencies distinctly provided for in the instrument, if made without Parliamentary authority, are there regarded as invalid. How far it may be practicable to create pledges of the earnings or tolls of such corporations, without a concurrent right to assume the control of the works, except through the officers of a Court of Chancery, is a question not much discussed in this country. Contracts of that kind do not seem to involve any transfer of the corporate franchises or any change in their control, except through the agency of the Courts of Equity; and their enforcement might come within the general powers of Courts of Equity. But we apprehend it is not competent for a Court of Equity to transform a contract in the form of a mortgage, and for whose execution no power existed in the corporation, into one of an entirely different character, which might have been executed by the parties and carried into effect by the Courts, and probably would have been, if the defect of authority had been fully understood. And if this even might be allowable, between the original parties, it certainly could not be done against subsequent incumbrancers, where legal priority is generally regarded as of the essence of the rights in controversy.

I. F. R.