both counsel, has shown that no such opinion is now in the papers, and high authority has suggested to me that Chancellor LOGAN entertained different views.

It is upon these and many other similar cases, that the mortgagee rests his claim.

When we now turn to cases directly against him, and directly upon the question, the authorities are numerous, consistent, and logical.

In the case of Holroyd v. Marshall, 9 Jurist 213, decided in 1863 by a great court, and supported by the illustrious names of Lord WESTBURY, Lord WENSLEYDALE, and Lord CRANWORTH, it was held that the mortgage would not cover after-acquired property, unless it was to be an accretion by addition or growth. In Mogg v. Baker, 3 Meeson & Welsby 195, it was declared by Baron PARKE that "if it was only an agreement to mortgage furniture to be subsequently acquired, to give a bill of sale at a future day of the furniture and other goods of the insolvent, then it should cover no specific furniture, and would confer no right in equity."

In Morrill v. Noyes, referred to above, the whole question is examined with consummate ability and decided with singular accuracy. The cases of Edgitt v. Hart, 5 Selden 216, Davis v. Ransom, 18 Illinois 401, Collins v. Myers, 16 Ohio 547, are sufficiently decisive of the illegality of the mortgage in this case.

It is laid down in Comyn's Dig., tit. Grant, D., "that a man cannot grant a thing which he has not." So in Bacon's Abridg ment, tit. Grant, D., it is said, "a man cannot grant all the wool that shall grow upon his sheep that he shall buy afterwards, for there he hath it not actually or potentially." The thing sold must have an actual or potential existence. See 2 Kent 468. If the seller own the sheep he can sell the wool afterwards to grow. See also 4 Metcalf (Mass.) 306, 2 Cush. 300, and 7 Ad. & E. 850, which illustrate the question. Nothing can be stronger in the same direction than the decision of Chief Justice TINDAL in Lunn v. Thornton, 1 Man. Gr. & Scott 379, decided in 1845.

It must be conceded, as a general proposition, that a mortgage of such goods as may be in store on a future day, or of such furniture as may be in a house, when no particular property is referred to, will not convey any title to, or create any lien upon, such property subsequently acquired which can be upheld or enforced

in a suit at law. All the books declare that; and equity, according to the cases I have examined in England and America, holds the same doctrine, except when there is a thing in possession of the seller to which the other things can attach in future as a part of the thing possessed, and not in substitution for it. A man cannot give or sell that which at the time of sale is not either within his actual or potential possession. Qui non habet, ille non dat. The Maine Case affirms: "The vendor or mortgagor must have a present actual interest in it or concerning it."

And, according to the 14th rule of Bacon's Maxims, "the law doth not allow of grants except there be the foundation of an interest in the grantor." And in the case just referred to the court says that "there must be something in presenti, of which the thing in futuro is to be the product, or with which it is to be connected, as necessary for its use, or as incident to it, constituting a tangible existing basis for the contract."

If a merchant owning one bale of cloth should by mortgage declare that that bale, and all other bales he should hereafter acquire, should be subject to the mortgagee's claim, surely one hundred bales, bought months or years afterwards, could not be considered the product of the present bale in possession. I have yet to learn that if a liveryman sell one horse, and with the money buy another, the second is the product of the first. It has been held that if a man contracts for the construction of a carriage or ship, and even pays for it, he cannot sell or mortgage the ship or carriage; but if he buy one in process of construction he can.

After having examined the English and American cases, I was curious to see how the question was treated in the civil law, and I have looked into it.

I find the doctrine the same as in England and America. On page 649, 1 Domat, Cushing's edition, it is said, "this mortgage extends to all the things which they shall afterwards acquire, that are capable of being mortgaged, by what title soever it be that they acquire them, and even to those which are not in being when the obligation is contracted; so that the fruits which shall grow upon the lands will be comprehended in the mortgage of an estate to come." On page 650 it is said: "Although the mortgage be restrained to certain things, yet it will nevertheless extend to all that shall arise or proceed from that thing which is mortgaged, or shall augment it and make a part of it. Thus the fruits which

grow upon the lands that are mortgaged are subject to the mortgage, while they continue unseparated from the ground." The great jurist proceeds to give a number of like instances, as the foals, the lambs and other produce of beasts that are mortgaged; and the accretion to mortgaged lands by the alluvion which the river may make.

All these go to illustrate the established English doctrine that a mortgage of property to be acquired in futuro extends only to such things as may be the product of, or the accretion to, a thing already in existence to which those to come will or may attach. The idea of substitution is everywhere ignored.

An eminent jurist and author, Chief Justice REDFIELD, in hist review of the Maine Case, in 3 American Law Register, referred to above, confesses that a mortgage of future-acquired goods, merely for the purpose of merchandise, is void both at law and equity, and he bitterly laments that courts of equity are not as progressive as merchants, otherwise such a mortgage would now be sustained.

I am not persuaded that I should share his lament. Policy and principle indicate a different course.

It is the very essence of commerce that merchandise shall be shipped the world over, without clogs, hindrance or fetters, except while in the hands of the possessor. If every bale of goods which comes to this city should, the moment it touches the wharf, be fettered with a long-made and unknown mortgage, the merchants of New York would look elsewhere for their correspondents. If every barrel of pork or hogshead of tobacco shipped to New York, at once became liable there to a previous debt of the consignee, with which the consignor had no part or acquaintance, the merchants of Louisville would look elsewhere for a market. If all the cities of the world were to adopt such a course, I doubt whether commerce would be advanced.

I am of opinion that the mortgage is invalid, and that it was made for the purpose of hindering creditors in the collection of their debts. It is fraudulent in law, and I am not sure that it is not fraudulent in morals. The attachment should be sustained.

District Court of the United States for the District of Wisconsin. In Admiralty.

THE GERMANIA INSURANCE CO. AND OTHERS v. THE STEAMBOAT LADY PIKE, CHRISTOPHER G. PEARCE AND OTHERS, CLAIMANTS.

A steamboat towing three loaded barges down the Mississippi river, in approaching bridge piers too closely to back or stop, the tow is driven against a pier by a sudden and unanticipated gust of wind: the carrier is not liable for loss or injury of the cargo of one of the barges.

MILLER, J.-This steamboat, at a port on the Mississippi river below St. Paul's, was contracted with to proceed up that river and up the Minnesota river to Shokopee, in the state of Minnesota, with three barges; and there to take on board the barges wheat in bulk, and to transport the same to Saranak, on the firstnamed river, in the state of Illinois. The wheat was put aboard the barges to be delivered in good order, unavoidable dangers of the river and fire only excepted. Heading down the Mississippi river, the steamboat with the three loaded barges, two on her larboard and one on her starboard side, and running between piers of the railroad bridge near St. Paul's, the larboard barge collided with a pier, and the wheat on board said barge was greatly damaged. The insurance companies having paid the loss, brought this libel.

The accident happened about three or four o'clock in the afternoon of April 24th.

Claimants allege in the answer that the steamboat and barges. left Shokopee in good order, and proceeded on the trip with all possible care, caution, and skill; that when passing through the piers in the usual way, and while in the usual channel for such passage, the steamboat and barges were by a sudden gust of wind blown to the larboard, so that the larboard barge struck the pier on that side and was sunk. It is further alleged that the steamboat and barges were fully and completely manned and equipped, and in all respects river-worthy, and were carefully and skilfully managed at the time of the injury, and that the sinking and consequent loss was an unavoidable danger of the river. The charge in the libel of negligence and improper conduct is denied in the

answer.

There is no doubt from the evidence that the boat and barges

were in good order for the service, fully equipped and manned, and in every respect river-worthy. There happened to be on board two captains and also two pilots at the wheel, at the time of the accident, and every man on board was then at his post of duty.

The river was high, with a current at the piers of about three miles to the hour, and nearly in line with the piers. By measurement on the ice the space between the piers was 116 feet, which probably would be increased some at a high stage of water by an inward inclination of the walls of the piers. The tow measured in breadth about 105 feet. The tow was running for the centre between the piers, and in a calm would clear them by about five and a half or six feet. Occasional gusts of wind met the tow through the day, but for an hour before reaching the piers there was a calm, and those on board had no anticipation of wind on approaching the piers. But when within the length of the boat from the piers a sudden gust of wind struck the tow and forced it against the pier and stove the barge. The boat was light, and having but a stern wheel she could not back with the three loaded barges in time to avoid the collision, but was obliged to keep on her course. The rate of speed was then about seven miles an hour. The channel seems to be divided, a portion passing between the piers, which was pursued by the tow, and a portion between the adjoining piers, which is wider, but it is said was not then taken by tows on account of a sunken barge. Other tows loaded passed in the course taken by this tow in safety; and this tow passed up safely three days before the accident, with the knowledge of the shipper. It is not settled that the current could have caused the collision with the pier. Some witnesses testify that it is unsafe to pass a tow of that breadth between those piers. And it is also testified that the piers should have been approached at a slow bell. On the other hand it is testified, by experienced river steamboat men, that the boat would be more manageable at the rate of seven miles an hour than slower. I think this latter opinion is the more satisfactory. And experience has tested the safety of passing between those piers with tows about the breadth of this one. I am well satisfied that if the piers had been approached by the tow under a high wind the boat should be condemned for unskilfulness of the officers. But there was a calm until the approach to the pier was too close to admit of avoiding the effect