Page:The Green Bag (1889–1914), Volume 03.pdf/106

The Supreme Court of Pennsylvania. {aro bank or the stock-market, as he pleases. It is, therefore, merely the form that pre vents such property from being property of the appointor, before appointment, because at his mere caprice he can make it his own. The English chancellors, therefore, have al ways held that provided an appointment is made such property has all the attributes of private property. They cannot compel

an appointment; but if it is made, they rec ognize that there is no more right to deal with such property and leave debts unpaid than there is in the case of any other spe cies of property. In other words, they rec ognize that the first duty of ownership is to pay debts. How was this dealt with by our Chief-Justice? The men who evolved this rule are said to have put their hand into the fund, — that is, steal. The principle is called a shallow equity; the mot i ve is said to be bred by the temper of the bankrupt laws. The J. BREWSTER Master of the Rolls (Sir William Grant) had forgotten the distinction between property and power. Gibson's appeal to Lord Eldon may possibly prove that that great lawyer saw something in his side of the question. I think it is nothing but his general disposi tion to permit nothing to pass without sug gesting all possible grounds for disputing, and probably a suggestion that the rule should extend further. It could scarcely be possible for one who pronounced the decision in Brandon v. Robinson, 18 Ves. 492, to have sanctioned the use of property at the pleas ure of an insolvent bidding defiance to his

creditors; for we should remember that Eldon, unlike some others, always remem bered what he had decided. It is rather surprising that the recognition of this (sup posed modern) mode of reasoning which is to be found in the Statute of 13th Eliz. did not occur to Gibson from his long ex perience. For what is the provision that the reservation of a power of revocation is evidence of fraud, but a recognition that a right to make the property one's own at pleasure is itself prop erty, and that an in strument that does this and at the same time protects it from creditors is a fraudu lent use of forms? Gibson's misappre hension of the rules of property that have their foundation in the same principles that are held up to scorn and the authors charged with gross dishonesty in Commonwealth v. Dufneld, 12 Barr, 277, is shown when he finds in the rule that the incidents of own McCOLLUM. ership imposed by law cannot be taken away at the will of a giver ( Brandon v. Robinson ), the foundation for a rule as to gifts to the separate use of a woman who is not married. The rule and the decision he relies on to sup port the rule in Pennsylvania as to separate uses are so utterly wrong that they are actu ally forgotten to have ever existed by the English Bar; the two things having far less real connection than the rules in Shelley's and the rule in Taltrum's case. It would be difficult to find a confusion of ideas and a mistake of doctrine so complete as is exhibited in the commentary on page 128, of 4 Whar