the title in the donee by terminating the donor's right or power of defeasance. The property passes from the donor to the donee directly * * * and after his death it is liable to be divested only in favor of the donor's creditors. * ** His right and power ceased with his death.
Perhaps the nearest synonym of "liability" is "subjection" or "responsibility." As regards the latter word, a passage from Mr. Justice Day's opinion in McElfresh v. Kirkendall[1] is interesting:
The words "debt" and "liability" are not synonymous, and they are not commonly so understood. As applied to the pecuniary relations of the parties, liability is a term of broader significance than debt. * * * Liability is responsibility.
While the term in question has the broad generic connotation already indicated, no doubt it very frequently indicates that specific form of liability (or complex of liabilities) that is correlative to a power (or complex of powers)[2] vested in a party litigant and the various court officers. Such was held to be the meaning of a certain California statute involved in the case of Lattin v. Gillette.[3] Said Mr. Justice Harrison:
The word "liability" is the condition in which an individual is placed after a breach of his contract, or a violation of any obligation resting upon him. It is defined by Bouvier to be responsibility.[4]
- ↑ (1873) 36 Ia., 224, 226.
- ↑ Compare Attorney General v. Sudeley (1896), 1 Q. B., 354, 359 (per Lord Esher: "What is called a 'right of action' is not the power of bringing an action. Anybody can bring an action though he has no right at all."); Kroessin v. Keller (1895), 60 Minn., 372 (per Collins, J.: "The power to bring such actions").
- ↑ 89 (1892) 95 Cal., 317, 319.
- ↑ We are apt to think of liability as exclusively an onerous relation of one party to another. But, in its broad technical significance, this is not necessarily so. Thus X, the owner of a watch, has the power to abandon his property—that is, to extinguish his existing rights, powers, and immunities relating thereto (not, however, his privileges, for until someone else has acquired title to the abandoned watch, X would have the same privileges as before); and correlatively to X's power of abandonment there is a liability in every other person. But such a liability instead of being onerous or unwelcome, is quite the opposite. As regards another person M, for example, it is a liability to have created in his favor (though against his will) a privilege and a power relating to the watch,—that is, the privilege of taking possession and the power, by doing so, to vest a title in himself. See Dougherty v. Creary (1866), 30 Cal., 290, 298. Contrast with this agreeable form of liability the liability to have a duty created—for example the liability of one who has made or given an option in a case where the value of the property has greatly risen.
