It was mortgaged to the plaintiffs; the right of redemption, unless the forfeiture had been waived, was lost. But the possession of the company was not wrongful. The receiver succeeded to the rights of the company. As they were not trespassers, he was not.

Nor do the plaintiffs claim that the defendant came wrongfully into the possession of the property, in March, 1860. They ground their suit upon a subsequent demand made by them, and a refusal by him to deliver it. They allege in their writ a conversion by such refusal, Sept. 24, 1860.

A receiver is not merely an agent of the complainants, in the suit under which he is appointed. He represents the court, for all the parties interested in the property, and acts, instead of the court, for the benefit of all. He is the servant of the court. His possession is the possession of the court; and any attempt to interfere with it, without leave of court, is a contempt. 2 Story's Eq. 829; Green vs. Bostwick, 1 Sandf. Ch. 185; Angell vs. Smith, 9 Vesey 335.

It is the duty of the receiver to take possession of the property. If the person who has possession refuses to deliver it up, if he is a party to the bill, he may be proceeded against for a contempt. If he is not a party, he may be made one for that purpose. Or the receiver, by leave of court, may proceed to recover possession by a suit at law. Parker vs. Browning, 8 Paige 388; Wynne vs. Newborough, 3 Bro. Ch. 88; Green vs. Winter, 1 Johns. Ch. 60. After the receiver has taken possession, any person claiming the property, or any interest therein, may present his claim to the He may be made a party to the suit in order to establish his claim. Or he may petition to have it heard before a master. Or he may, by express permission of the court, bring a suit for the possession, care being taken to protect the receiver. But the receiver will not be ordered to deliver the property to a claimant until his right is established, in one of these modes. Nor can any claimant bring a suit against the receiver, except by leave of court, without being liable for a contempt, if the property is a part of the subject-matter in controversy. 2 Story's Eq. 833; 3 Daniel's Ch. 1982; 6 Ves. 287; Noe vs. Gibson, 7 Paige 513; Al

court.

bany Bank vs. Schermerhorn, 9 Paige 372; Howell vs. Ripley, 10 Paige 43.

These general principles are decisive of the case before us. The receiver came rightfully into possession of the property. It was his duty to retain possession until ordered otherwise by the court. The plaintiffs had leave to bring this suit, but they chose the form of their action. They have mistaken their remedy. Their action is not a suit for the possession, but is an attempt to hold the receiver personally liable for the value of the property. Such an action cannot be maintained under the circumstances of this case. Whether in any case an action of trespass or trover can be maintained against a receiver, when he rightfully takes possession of the property, is a question upon which it is unnecessary for us to express any opinion. If the property is real estate, so that the title can be tried in an action of trespass, without changing such title, or rendering the receiver liable for the value, perhaps there would be no objection to its maintenance. Or if he has received the rents of real estate, or has sold personal property, by order of the court, perhaps the amount in his hands may be claimed in a suit at law. But in the case at bar, the plaintiffs, if the owners, can only recover the possession, in an appropriate action therefor.

But if, for this reason, the plaintiffs cannot recover in this suit, still it may be well for us to examine their title to the property, in order to save further litigation. The question has been fully presented and argued. The plaintiffs claim that the engine and cars sued for could not have been conveyed by the mortgage to Myers, of February 6, 1851, because not in existence at the time. They were not purchased by the railroad company until 1853. As the mortgage to the plaintiffs was made after the purchase, their title is good unless the title passed to Myers, in trust, by the first mortgage.

The question whether a mortgage of personal property not in existence, or not owned at the time by the mortgagor, can be made available by the mortgagee, as a lien upon property afterwards ac

quired, has been discussed in many recent cases, with some apparent difference of opinion.

Some of the courts have denied that any difference exists, and have attempted to reconcile the cases on the ground that such a mortgage, though void at law, is valid in equity. But this is a loose use of language, that tends more to confuse than to reconcile. If such a mortgage is absolutely void, for want of any subject-matter to support it, then it should be so held in equity, as well as at law. But if not thus void, to what extent is it valid? and in what sense? It is only by conceding its validity, that it is pertinent to inquire whether the remedy is in equity, or by a suit at law.

In other cases the reasoning is syllogistic and summary. "Qui non habet, ille non dat." A mortgage is a grant. Therefore a mortgage of what one does not own, or of what is not in esse, is void.

But a mortgage is a grant, to be defeated upon a condition. This makes it merely the creation of a lien, with certain rights to secure and enforce it. A lien may be created without a grant. And sometimes a contract intended as a grant, but ineffectual as such, will be upheld in equity as a lien. So that the syllogism is by no means certain to dispose of the question.

As a general proposition it may be said, that a mortgage of such goods as may be in a store on a future day, or of such furniture as may be in a house,—or of such machinery as may be in a mill,or of such stock as may be on a farm,-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. Head v. Goodwin, 37 Maine 181; Barnard vs. Eaton, 2 Cush. 294; Codman vs. Freeman, 3 Cush. 306; Otis vs. Sill, 8 Barb. 102; Gardner vs. McEwen, 19 N. Y. (5 Smith) 123; Tapfield vs. Hillman, 46 Eng. C. L. 243; Lunn vs. Thornton, 50 Eng. C. L. 379; Gale vs. Burnell, 53 Eng. C. L. 850. In Connecticut, a mortgage of a shifting stock of goods in a store, was held to create the same lien upon goods subsequently purchased as upon those owned at the time. Holly vs. Brown, 14 Conn. 255.

A similar decision was made in this State, in the case of Head vs. Goodwin, 37 Maine 181. But that case was questioned in Jones vs. Richardson, 10 Met. 481; and it was substantially overruled in Pratt vs. Chase, 40 Maine 269. The question is therefore no longer an open one in this court.

It should be noticed, however, that in nearly all the cases cited, the mortgages were exceedingly indefinite. Some of them described no particular property which could be identified; but they were mortgages of mere contingencies of such property as the mortgagors might purchase, if they should purchase any. They were void for uncertainty, if for no other reason. Winslow vs. Merchants' Ins. Co., 4 Met. 306. Except the case of Otis vs. Sill, 8 Barb. 102, they probably would not have been upheld in equity, any more than at law. Mogg vs. Baker, 3 Mees. & Welsb. 195; Moody vs. Wright, 13 Met. 17.

We can understand these cases better by referring to another class in which conveyances of property, not in existence at the time, have been upheld, either at law or in equity. And we think it will be seen that sales or mortgages of such property have been sustained when within the following rules.

1. The contract must relate to some particular property described therein, which, though not in existence, must be reasonably certain to come into existence, so that the minds of the parties may be in agreement as to what it is to be, and, if the sale is absolute, what, with reasonable certainty, taking the ordinary contingencies into consideration, is the present value.

2. The vendor or mortgagor must have a present, actual interest in it, or concerning it. As is said in illustrating Rule 14 of Bacon's Maxims, "the law doth not allow of grants, except there be the foundation of an interest in the grantor." 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.

The application of these principles to the multifarious affairs of a business people, may sometimes be difficult. And in the various

enterprises that are likely to be undertaken in a country distinguished for its manufactures, and its domestic and foreign commerce, new applications of them from time to time may be required. But the illustrations to be found in the decided cases will be sufficient for our present purpose.

Thus, one may sell all the wool which shall grow for a term of years on sheep owned by him at the time; but not the wool to be grown on so many sheep, if he does not own them. Grantham vs. Hawley, Hobart 132; Smith vs. Atkins, 18 Verm. 461. So he may sell the grass, or any crop that does not require annual renewal, that shall grow upon his farm for a term of years. Jencks vs. Smith, 1 Coms. 90; Bank of Lansingburg vs. Crary, 1 Barb. 542; Milliman vs. Neher, 20 Barb. 37.

If one contracts for the construction of a carriage, or a vessel, for himself, and pays therefor, he acquires no title until it is completed and delivered. Mucklow vs. Mangles, 2 Taunt. 318; Comfort vs. Kiersted, 20 Barb. 472. But if he buys a chattel in process of construction, and it is delivered to him, though afterwards to be finished, the title passes, and the additions made to it for the purpose of completing it become his property from the time when they are attached to it. The only reason why the conveyance of a vessel on the stocks was not upheld as a mortgage, in Bonsey vs. Amee, 8 Pick. 236, was because there was no delivery, and the registry law had not then been enacted, which renders a delivery unnecessary. Call vs. Gray, 37 N. H. 428. A mortgage of unfinished chattels gives the mortgagee a good title to them when finished. Harding vs. Coburn, 12 Met. 33; Jenckes vs. Goffe, 1 R. I. 511; Perry vs. Pettingill, 33 N. H. 433.

So the owner of a ship may assign the freight of a voyage which has been commenced. In re ship Ware, 8 Price 269; Douglas vs. Russel, 1 M. & K. (7 Eng. Ch.) 488. Or he may sell the oil and cargo to be brought home from a whaling voyage then being prosecuted. Langton vs. Horton, 1 Hare 549; Fletcher vs. Morey, 2 Story 555. And a laborer, employed by another, may assign his wages afterwards to be earned; but not unless they are to be earned under an existing contract. Mulhall vs. Quinn, 1 Gray