1 and purchasers, that he whose assignment of an equitable interest in a fund is first in order of time has, by virtue of that circumstance alone, the better right to call for the possession of the fund. This rule prevails amongst mortgagees, who are considered purchasers pro tanto; and where, therefore, of three mortgages, the first is bought in by the owner of the third, such third mortgagee thereby acquires the legal title, and, having thus got the law on his side, with equal equity will be permitted to tack the first and third mortgages together to the exclusion of the second (b). On the same principle, a mortgagee may recover in ejectment, without previously giving notice to quit, against a tenant who claims under a lease from the mortgagor, granted after the mortgage, and without the privity of the mortgagee; for the tenant stands exactly in the place of the mortgagor, and the possession of the mortgagor cannot be considered as holding out a false appearance, since it is of the very nature of the transaction that the mortgagor should continue in possession, and whenever one of two innocent parties must be a loser, then the rule applies, qui prior est tempore, potior est jure. If, in the instance just given, one party must suffer, it is he who has not used due diligence in looking into the title (c). So, it has been remarked, that, wherever the legal estate is outstanding, either in a prior incumbrancer, or in a trustee, as against whom the puisne incumbrancer has not the best right to call for the legal estate, the whole title and consideration are in equity, and then the above maxim is applicable (d). (b) Willoughby v. Willoughby, 1 T. R. 773, 774; Robinson v. Davison, 1 Bro. Ch. C., 5th ed., 61; Brace v. Duchess of Marlborough, 2 P. Wms. 491; 1 My. & K. 297; 2 Sim. 257; Law Magazine, No. 62, p. 326. (c) Keech v. Hall, Dougl. 21; Judgment, Dearle v. Hall, 3 Russ. (d) Per Lord Hardwicke, C., Willoughby v. Willoughby, 1 T. R. 773, citing Sir Joseph Jekyll's judgment in Brace v. Duchess of Marlborough, 2 P. Wms. 495. As to the legal right tels. It may, in pursuance of these remarks, be almost unne- Title to chatcessary to call to mind, that, in very many cases where a question arises as to the title to goods, it does, in fact, resolve itself into this consideration,-in whom did the title first become vested? Thus, it is a general rule of the law of England, that a man who has no authority to sell cannot, by making a sale, transfer the property to another (e); that is to say, he cannot, in this manner, divest of his property the party previously entitled. To this rule there is, however, one exception, viz. the case of a sale of goods in market overt (ƒ); but this is an exception, originating in the manifest injustice and impolicy of permitting sales of a public description to be impeached by a party who could not by due diligence be discovered (g). This subject will be again adverted to under the maxim caveat emptor, to which very comprehensive principle it is usually referred (h). Further, it is a general rule, that the law will not notice Priority of the fraction of a day, for de minimis non curat lex(i). Where, however, a fi. fa. was sued out on a judgment entered up under a warrant of attorney, and the sheriff seized the goods before ten o'clock in the forenoon of the 13th of August, and sold the same ten days afterwards; and on the 13th of October following, about noon, a commission of bankrupt issued against the defendant, under which he was declared a bankrupt: it was held, that more than two calendar months had elapsed between the execution and the issuing of the commission, and that the former was, therefore, protected by the 81st section of the stat. 6 Geo. 4, c. 16. In this case it was necessary, in order to determine where two presentations are made to (f) 3 B. & C. 42; Peer v. Hum- (g) Chit. Contr., 3rd ed., 385. (i) Ante, p. 156. execution. which of the two conflicting claims should prevail, to ascertain the precise time when the execution was executed, and also the precise time at which the commission was issued (k). Another, and certainly one of the most important instances of the application of the principle, prior tempore potior jure, occurs where two writs of execution against the same person are delivered to the sheriff, in which case he is bound to execute that writ first which was first delivered to him (1), even where both were delivered upon the same day (m); unless, indeed, the first writ, or the possession held under it, were fraudulent, in which case the goods seized cannot be considered as in the custody of the law at the date of the delivery of the second writ, which latter, therefore, shall have priority; and where a party is in possession of goods apparently the property of a debtor, the sheriff who has a fi. fa to execute is bound to inquire, whether the party in possession is so bonâ fide, and, if he find that the possession is held under a fraudulent bill of sale, he is bound to treat it as null and void, and levy under the writ (n). It is necessary to observe, moreover, the meaning of the words of the stat. 29 Car. 2, c. 3, s. 16, viz. "no writ of fieri facias, or other writ of execution, shall bind the property of the goods of the party against whom such writ of execution issued forth, but from the time that (k) Godson v. Sanctuary, 4 B. & Ad. 255; Thomas v. Desanges, 2 B. & Ald. 586; Sadler v. Leigh, 4 Camp. 197; Saunderson v. Gregg, 3 Stark. 72. As to a writ of extent, ante, p. 30. The relation of a judgment to the first day of term, p. 54. Seizure under a fi. fa. after a secret act of bankruptcy, p. 55. Skey v. Carter (in error), 11 M. & W. 571; Whitmore v. Robertson, 8 M. & W. 463. (1) Per Ashhurst, J., Hutchinson v. Johnston, 1 T. R. 131; Jones v. Atherton, 7 Taunt. 56; 29 Car. 2, c. 3, s. 16. (m) 1 Chit. Arch. Pr., 7th ed., 407. (n) Lovick v. Crowder, 8 B. & C. 135, 137; Warmoll v. Young, 5 B. & C. 660, 666. As to the effect of a writ of sequestration out of Chancery, see Payne v. Drewe, 4 East, 523. such writ shall be delivered to the sheriff." Their signification is, that, if, after the writ is so delivered, the defendant make an assignment of the goods, except in market overt, the sheriff may take them in execution. But neither before this statute, nor since, would the property in the goods be altered: it continues in the defendant until execution executed (o); the goods are bound by the delivery of the writ to the sheriff as against the party himself, and all claiming by assignment from, or representation through or under, him (p). the courts. The maxim under consideration is also applied to the Practice of practice of the courts of law, of which the following instance may be given:-A motion was made, on the first day of term, that a prisoner should be brought up under the compulsory clause of the Lords' Act (q), for the purpose of giving in his schedule; and on the same day a motion was made for the prisoner's discharge under the stat. 48 Geo. 3, c. 123. The Court, after granting in each instance a rule nisi, (since the requisite notice had not been given by the defendant), said, that the case must be determined as it stood on the first day of the term, and that, on the principle, qui prior est tempore, potior est jure, the plaintiff's rule for bringing up the prisoner must first be made absolute, and then, subject to the proper notice, the rule for the prisoner's discharge (r). (0) Per Lord Hardwicke, C., Lowthal v. Tonkins, 2 Eq. Cas. Abr. 381, cited, 4 East, 539. (p) Per Lord Ellenborough, C. J., 4 East, 538. Goods seized by a messenger under a fiat in bankruptcy are ot, while in his custody, privileged from distress for rent due from the (r) Davis v. Curtis, 3 B. N. C. Nudum pactum defined. EX NUDO PACTO NON ORITUR ACTIO. (Noy, Max. 24).—No cause of action arises from a bare agreement. By the civil law, nudum pactum is defined thus: nudum pactum est ubi nulla subest causa præter conventionem (s). A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay anything on one side, without any compensation on the other, is totally void in law, and a man cannot be compelled to perform it (t). A valid and sufficient consideration or recompense for making, or motive or inducement to make, the promise upon which a party is charged, is of the very essence of a contract not under seal, both at law and in equity, and must exist, although the contract be reduced into writing; otherwise the promise is void, and no action can be maintained thereon (u). Accordingly, if one man promises to give another 1001., there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other (x). A gratuitous undertaking may form the subject of a moral obligation; it may be binding in honour, but does not create a legal responsibility (y). Nor will a mere voluntary courtesy uphold an assumpsit, unless moved by a previous request (z). (s) Plowd. 309, n.; Vin. Abr. "Nudum Pactum,” (A). See 1 Powell on Contracts, 330-369. (t) 2 Bla. Com. 445; Noy, Max., (u) Chit. Contr., 3rd ed., 27. (y) Chit. Contr., 3rd ed., 28. Judg. negligence. (Coggs v. Bernard, 2 Ld. (z) Lampleigh v. Brathwait, Hob. R. 105. Physicians and counsel have no legal title to remuneration, unless an express agreement or actual contract be shewn. (Veitch v. Russell, 3 Q. B. 928, where the authorities are cited). |