bonds. We do not know to what extent Judge King's decision has been followed by other Orphans' Court and Common Pleas judges throughout the State, but as presented here it is a new question. We have no decisions of our own, therefore, to embarrass us. The decision of so eminent a jurist as Judge King is entitled to much respect, but it is not authority beyond its reason.

We have not the case of United States and State loans before us, and no question in regard to them will be decided, and they will be considered only so far as they are necessarily involved in the discussion of municipal and other corporation bonds. I am unable to see any distinction between them upon principle; if any is made it must be an arbitrary one, and because some rule of policy requires it.

It is manifest from a careful study of Judge King's opinion that he did not consider, and probably entirely overlooked the peculiar character of the English consols, and their marked difference from the public debt of this country. In many of the English cases the question arose upon annuities, such as the South Sea annuities. The English consols are but annuities; the interest only is paid, the principal is never reimbursable, and the Government can only redeem them by buying them in the market.

The reasoning of the English cases goes upon the ground that the interest does not accrue day by day, which is entirely true of their consols. In Pearly v. Smith, supra, Lord Hardwicke stated it as tersely as it can be put, when he says: "If the security had continued a mortgage, the claimant would have been entitled to the demand he now makes, because there interest accrued every day for forbearance of the principal, though notwithstanding it is usual in mortgages to make it payable yearly." The same distinction between mortgages and funded debt is recognized in Sherrard v. Sherrard, supra, and many other English cases. And it is an obvious distinction as applied to South Sea annuities, and British consols generally. But the distinction between a mortgage and bonds of the city of Pittsburgh, and the bonds of the Philadelphia & Reading Coal & Iron Company, secured by a mortgage, is difficult to see. In either case it is a loan, and the interest accrues from day to day as the consideration of the forbearance. That the principal is not due is not to the point, for money is loaned for a term of years upon mortgages as well as city or corporation bonds.

No reason other than the one just stated has or can be given why the income from municipal bonds may not be apportioned. The learned court below, however, attempted to take municipal bonds out of the English rule in regard to Government securities, by showing that municipal and other corporations may be compelled to pay, which is not the case with either the National or State Government. The conclusion is correct, but we do not assent to the reasoning. It is true the Government is sovereign; it cannot be sued and compelled to pay like an ordinary debtor, while municipalities, which are the creatures of the State, may be so compelled. This however is outside of the question. If the

sovereign does not pay there is nothing to apportion. No question of apportionment can be raised until there is actual payment of the interest, and when payment is made the question whether it was a voluntary or a forced payment has no bearing upon the principle of apportionment.

Nor is there any question about government policy or treasury convenience. This was clearly shown by Judge King in Earp's Will, supra, where he said: "It is a mistake to suppose that the rule in equity had any original connection with government policy or treasury convenience. From the time of its establishment by Lord Hardwicke in 1744, such an idea is not intimated in any decided case. And this for the simple reason that the treasury had no interest in the subject." Judge King then proceeds to give what he conceived to be the reason of the rule in equity. It was substantially that the funded debt carries with it the idea of permanency, and becomes a favorite investment with persons desirous of having a fixed income; that the interest of such investments may be applicable to a series of persons for a long time. These may be very good reasons to induce persons who desire permanent investments to buy such securities, and perhaps why the income of English consols and South Sea annuities should not be apportioned, as the interest thereon does not accrue from day to day. But the interest on these municipal and corporation bonds does accrue de die in diem precisely as in the case of an ordinary bond and mortgage, and we are wholly unable to distinguish one from the other in principle. The applicability of this rule to Federal and State securities will be decided when the cases arise; they have been referred to here only for the purpose of illustration, and in so far as such allusion was necessary to a proper discussion and understanding of the case before us.

The decree is affirmed and the appeal dismissed at the costs of the appellant.1

1 RE ROGERS' TRUSTS.

CHANCERY. 1860.

[Reported 1 Dr. & Sm. 338.]

THIS petition was presented by the trustees of the will of William Rogers, deceased, under the thirtieth section of the "Law of Property and Trustees' Relief Amendment Act" (22 & 33 Vict. c. 35), for the advice of the court as to whether certain dividends received by them on railway debentures after the death of their testator, but which accrued partly during the lifetime of the testator and partly after his death, though not payable till after his death, should be treated as forming part of the income or capital of their testator's estate.

William Rogers died on the 11th of February, 1859, having by his will, dated the 17th of June, 1857, given all his real and personal estate not specifically disposed of to his trustees, the petitioners, upon certain trusts expressed in his will.

The testator, at the time of his death, was possessed of £3,000, secured by three debentures of the Great Western Railway Company, for £1,000 each, and bearing interest after the rate of £5 per cent, and of £3,000 secured by three debentures of the Midland Railway Company for £1,000 each, and bearing interest after the rate of £4 5s. per cent.

Each of the debentures of the Great Western Railway Company purported to be an

C. Goods conveyed in Fraud of Creditors.

OSBORNE v. MOSS.

SUPREME COURT OF NEW YORK. 1810.

[Reported 7 Johns. 161.]

THIS was an action of trespass quare clausum fregit, &c. The declaration stated, 1. That on the 10th of September, 1809, the defendant, at Moreau, in Saratoga County, broke and entered the close of the plaintiff, and took and carried away one pair of oxen, of the value of 200 dollars, and two cows, of the value of 100 dollars. 2. For taking and carrying away the same chattels. The defendant pleaded

assignment of the undertaking of the Great Western Railway, and of all the tolls arising therefrom under their Act, unto William Rogers, his executors, administrators and assigns, until the sum of £1,000, with interest for the same at the rate of £5 per cent, should be satisfied, with a proviso that the principal sum should be repaid at the end of three years from the 30th of May, 1857. The principal, therefore, on them was not payable till May, 1860. To each of these debentures were attached warrants or coupons for the payment of interest half-yearly, on the 2d of January and 2d of July in every year.

On the 2d of July, 1859, the sum of £73 8s. 9d. became due for the half-year's interest on the debentures, and was received by the petitioners.

Each of the debentures of the Midland Railway also purported to be an assignment of the undertaking to William Rogers, till the sum of £1,000 and interest, after the rate of £4 58. had been satisfied, and contained a stipulation that the principal sum of £1,000 should be repayable on the 7th of January, 1860, and that in the mean time the company should, in respect of the interest on the principal sum, pay to the bearer of the said coupons or interest warrants respectively the several sums therein specified. To each of these debentures coupons were also annexed for payment of the interest half-yearly, on the 1st of January and the 1st of July in every year.

On the 1st of July, 1859, the sum of £62 8s. 6d. became due for a half-year's interest on the debentures, and was received by the petitioners.

Questions having arisen between the tenants for life and remaindermen under the testator's will, as to whether these sums of £73 8s. 9d. and £62 8s. 6d. were income or were apportionable, the petitioners presented the present petition for the advice of the court.

Mr. Whitcombe, for the trustees.

Mr. Shapter and Mr. Eddis, for the remaindermen.

Mr. Glasse and Mr. Fry, for the tenants for life.

THE VICE-CHANCELLOR. [SIR R. T. KINDERSLEY.] This is a question which has nothing to do with the Apportionment Act (4 & 5 Will. 4, c. 22), and would equally have arisen if that Act had never passed.

The object of the Apportionment Act was to apportion as between different persons one whole and entire thing; a half-year's dividend on so much stock is one entire thing, and that Act would apply to it.

In the present case, the interest payable on the debentures, though payable halfyearly, is not an entirety, but is an accumulation of each day's interest, which accrues de die in diem; and which, though not presently payable, is still due. The only ques-38

VOL. IV. —

as to the force, &c., Not guilty; and as to the residue, that before, &c., to wit, on the 11th September, 1809, the defendant was legally appointed administrator of Samuel Hodges, deceased; that the intestate was possessed, as of his own proper goods, of the said chattels,

tion in my mind was, whether the practice in chambers was otherwise than to apportion such interest; but on inquiry at chambers I find that it is a matter of course to treat so much of the half-year's interest as has accrued during the life of the testator as capital.

The present is not indeed the case of a common bond, but of debentures issued under an Act of Parliament. The debenture is in the nature of a mortgage, to secure a certain sum of money, with interest; and there are coupons attached to the debenture, which make the interest payable half-yearly. It appears to me to stand in the same position as a mortgage; and therefore that so much of the first half-year's interest payable after the testator's death as accrued due during his lifetime, must be apportioned and treated as capital.

DEXTER v. PHILLIPS.

SUPREME JUDICIAL COURT OF MASSCHUSETTS. 1876.

[Reported 121 Mass. 178.]

BILL IN EQUITY, filed June 26, 1874, by the trustees under the will of William Phillips, alleging that the testator died April 8, 1873, and that by his will the residue of his estate was given to the plaintiffs in trust to pay the net income thereof, as often as semi-annually, to John C. Phillips, during his natural life, and upon his decease, if he should leave issue surviving him, to pay over, transfer and convey the principal or capital of the trust fund to and among his lawful issue; but if no lawful issue of John C. should be living at his decease, then to pay over the net income of the trust fund, as often as semi-annually, unto John Phillips, son of Thomas W. Phillips, during his natural life, and at his decease to pay over, transfer and convey the principal or capital unto the lawful issue of John Phillips; that John C. Phillips is living, unmarried, without issue; that John, son of Thomas, is living, married, and has four minor children; that on April 8, 1873, when the testator died, different portions of his real estate were occupied by tenants, some at will and some under leases, who paid rent by the quarter or month, and that the quarters or months had commenced, but were not terminated, on April 8, 1873, and that the amount of rents which were accruing and had not then become payable was $8,448.78; that by the terms of the leases rent was payable for each quarter or month during its term, and at that rate for fractions of a quarter or month, and that the lessor had the right under each lease to terminate it, in case of the destruction of the buildings on the leased premises by fire or any other unavoidable casualty, or if they were injured by such causes so as to be unfit for habitation; and that the leases also contained the usual clause of entry and forfeiture in case of a breach of the conditions of the lease; that on April 8, 1873, portions of the testator's personal property were invested in bonds and notes, and the interest on them was accruing and had not become payable, and that the amount of such interest was $25,925.65, and that some of these were bonds of the United States, issued under different Statutes thereof; that the executor under said will collected said rents and interest at about the times the same respectively became payable, and paid the same over to the trustees under said will; that the plaintiffs held the same, and were in doubt whether said sums, or either of them, or any part thereof, after deducting proper commissions, should be paid over to said John C. Phillips, or added to the capital, and asked the instruction of the court thereon, and that the defendants might interplead and set forth their respective interests in said sums; and for further relief.

The answers admitted all the allegations of the bill; John C. Phillips contending that the said several sums, as to which instructions were asked, after the deduction of

and that the defendant, as administrator, entered and took the chattels, and this he is ready to verify, &c.

The plaintiff replied, that before, &c., to wit, on the 7th of August, 1809, in the life of the intestate, at a justice's court, held, &c., he, the all proper commissions, belonged to him as income; and John Phillips, as well as Richard Olney, who had been appointed by the court guardian ad litem of the infant defendants, and next friend of all persons, not ascertained or not in being, who might be interested in said sums of money, or either of them, contending that said sums should be added to the capital of the fund.

Hearing on the bill and answers, before Endicott, J., who reserved the case for the consideration of the full court.

C. A. Welch, for John C. Phillips.

F. C. Welch, for John Phillips.

R. Olney, for the other defendants.

GRAY, C. J. It is a general rule of the common law, followed in chancery, that sums of money, payable periodically at fixed times, are not apportionable during the intervening periods.

It is accordingly well settled, both at law and in equity, except when otherwise provided by Statute, that a contract for the payment of rent at the end of each quarter or month is not apportionable in respect of time. Sohier v. Eldredge, 103 Mass. 345. Clun's Case, 10 Rep. 127 a, 128 a. Jenner v. Morgan, 1 P. Wms. 392. In re Markby, 4 Myl. & Cr. 484. Browne v. Amyot, 3 Hare, 173. Beer v. Beer, 12 C. B. 60. In re Clulow, 3 Kay & Johns. 689. The opposing decision on this point in Foote, appellant, 22 Pick. 299, appears to have been made without much consideration or reference to authorities, and is in effect overruled by Schier v. Eldredge, ubi supra.

So dividends on shares in corporations or joint stock companies are not apportionable, unless expressly so directed by Statute, or by the instrument under which the question arises. Foote, Appellant, 22 Pick. 299. Granger v. Bassett, 98 Mass. 462. Clive v. Clive, Kay, 600. In re Maxwell's Trusts, 1 Hem. & Mil. 610. Although the uncertainty whether the dividend will be declared on a particular day, and the impracticability of ascertaining how much of it has been earned at any earlier time, have been mentioned in some of the cases as reasons for this conclusion, they are not the principal grounds on which it rests; for the rule has been held equally applicable to cases where there was no such contingency.

Thus annuities, except where clearly intended for the daily support of the beneficiary, as in the case of a child or of the separate maintenance of a wife, are within the rule. Wiggin v. Swett, 6 Met. 194. Hay v. Palmer, 2 P. Wms. 501. Reynish v. Martin, 3 Atk. 330, 336. Howell v. Hanforth, 2 W. Bl. 1016. Anderson v. Dwyer, 1 Sch. & Lef. 301. Franks v. Noble, 12 Ves. 484. The Queen v. Treasury Commissioners, 16 Q. B. 357. Leathley v. Trench, 8 Irish Ch. 401.

The rule has always been held in England to apply to investments in the public funds. It was applied by Lord Hardwicke to the South Sea Annuities, even where the debt, by the terms of the settlement, had originally been secured upon a mortgage, the interest upon which would have been apportionable, and had been transferred to Government securities by order of the court; or where the money was directed to be laid out in land, and in the mean time to be invested in Government securities, the interest and dividends to go in the same way that the rents and profits would, and the rents, if it had been actually invested in land, would have been apportionable under St. 11 Geo. II. c. 19, § 15. Pearly v. Smith, 3 Atk. 260. Sherrard v. Sherrard, 3 Atk. 502. Wilson v. Harman, 2 Ves. Sen. 672; s. c. Ambl. 279. And it has been uniformly applied to the three per cent bank annuities or consols. Rashleigh v. Master, 3 Bro. Ch. 99. Michell v. Michell, 4 Beav. 549. Campbell v. Campbell, 7 Beav. 482. In re Longworth's Estate, 1 Kay & Johns. 1. O'Brien v. Fitzgerald, 1 Irish Ch. 290. In each of those cases, the interest of the holder was a perpetual annuity, at a fixed rate of interest, subject to redemption by the Government by payment of the principal sum