trusts are valid, and that therefore the heirs are not entitled to a reconveyance, and that is properly the end of the contro

versy.

We must attribute to that decree all the efficiency that belongs to it in that branch of our judicial system. In our state courts, the heirs might have raised the same question by the legal remedy of ejectment, and a judgment for or against them would have been subject to our law relative to the effect of the remedy. But they selected a different forum, and a different remedy, and they must accept the decree with all the efficacy it has in such a remedy, and in that forum. If their case had gone off on a question of form or jurisdiction, they would have had their bill specially dismissed without prejudice, and not a general dismissal on the merits.

Possibly, the very questions discussed in the present case were not discussed in the equity case. We think they were not; but they were raised in it by the necessary averment that the trusts were void, and it was only by way of argument, and not by averment, that the questions here discussed could be brought up for consideration. A decree is not the less conclusive because an argument, afterwards thought to be important, was not, in proper time, urged upon the consideration of the court. A rehearing is the proper remedy for such an omission. We have shown, however, that the argument would have been of no avail if it had been urged.

We are of opinion, therefore, that the court below was in error in affirming the plaintiffs' fourth point, and in not affirming the first five points of the defendant. It is not necessary for us to consider the defendant's sixth point.

Judgment reversed, and a new trial awarded.

BEQUEST TO CHARITABLE USES, VALIDITY OF: See Sanderson v. White, 29 Am. Dec. 591, and note 599, containing various points concerning bequests; Moore's Heirs v. Moore's Devisees, 29 Id. 417, and note 430; Curling's Adm'rs v. Curling's Heirs, 33 Id. 475, and collected cases in note thereto 479; Bridges v. Pleasants, 44 Id. 94. History of law of charitable uses is reviewed at length in Owens v. Missionary Society, 67 Id. 160. For extended notes on charitable uses, and devises thereto, see case last cited, pp. 184, 185; Bridges v. Pleasants, 44 Id. 98-101, the last of which treats of charities void for uncer. tainty.

CY PRES, DOCTRINES OF, AND TO WHAT EXTENT APPLIED IN THIS COUNTRY: Methodist Church v. Remington, 26 Am. Dec. 61, and note 68; Curling's Adm'rs v. Curling's Heirs, 33 Id. 475, and note 478; Bridges v. Pleasants, 44 Id. 94.

PERPETUTTY, WHAT IS NOT: Moore's Hers v. Moore's Devisees 29 Am. Dec.

THE PRINCIPAL CASE IS CITED in Yard's Appeal, 64 Pa. St. 98, to the point that nothing is denounced by the law as a perpetuity, unless it restrain the vesting of an estate or interest beyond the period of a life or lives in being, and twenty-one years and nine months thereafter; and in Manners v. Library Co., 93 Id. 174, as showing to what extent the doctrine of cy pres is part of the law of Pennsylvania. The principal case was quoted from as follows: "It is a rule of law and equity that where a vested estate is distinctly given, and there are annexed to it conditions, limitations, powers, trusts (including trusts for accumulation), or other restraints relative to its use, management, or disposal, that are not allowed by law, it is these restraints, and the estates limited on them, that are void, and not the principal or vested estate."

PATTEN'S APPEAL

[45 PENNSYLVANIA STATE, 151.!

RESCISSION OF CONTRACT OF SALE. NEITHER STOPPAGE OF GOODS SOLD, WHILE IN TRANSITU, nor the exercise of the analogous right of detention before any transitus has commenced, operates as a rescission of the contract of sale.

RIGHT OF STOPPAGE IN TRANSITU DOES NOT PROCEED UPON GROUND OF RESCINDING the contract, but as a case of equitable lien. It assumes the existence and continuance of the contract.

VENDEE MAY, AT ANY REASONABLE TIME AFTER VENDOR HAS STOPPED GOODS, enforce his claim to them by payment of the purchase-money, according to the terms of the original contract.

VENDOR MAY, NOTWITHSTANDING HIS EXERCISE OF RIGHT OF STOPPAGE, MAINTAIN ACTION against the vendee for goods bargained and sold, provided he be ready and willing to surrender the goods according to the terms of the orignal contract.

CONTRACT CANNOT BE RESCINDED WITHOUT MUTUAL CONSENT, where part execution of it has so altered circumstances that the parties cannot be put into their original position.

RESALE OF PART OF LOT of Sugar by Vendor after VENDEE HAS OBTAINED OTHER PART, even if wrongful, places the parties in a different situation from their original position.

RESCISSION OF SALE-DETENTION OF PART IS SECURITY FOR PRICE. - Vendor's detention of part of lot of sugar after the vendee's failure, where the latter obtained the other part before such failure, does not annul the sale, but the vendor holds the sugar as security for the payment of the stipulated price. And the subsequent sale of the part detained cannot work a rescission of the sale.

SPECIAL ACTION ON CASE IS ONLY PROPER ACTION TO BRING AGAINST VenDORS who wrongfully detain and sell goods already sold to another. VENDOR MAY, AFTER NOTICE, AND ALLOWING VENDEE REASONABLE TIME FOR PAYMENT, SELL GOODS, and apply the proceeds to the payment of the price; and should a balance still remain unpaid, the vendor may recover it from the vendee.

BENEFICIAL OWNERSHIP OF PROPERTY, ASSIGNED IN TRUST FOR CREDITORS, is in the creditors for whose benefit the trust was made; and such an assignment is as much for the benefit of a creditor who holds a collateral se

curity for the debt due him, as for the benefit of a creditor who holds no collateral.

CREDITOR IS ENTITLED TO DIVIDEND UNDER ASSIGNMENT, not merely as a creditor, but as an equitable owner of the assigned estate; and the extent of his ownership is fixed by the amount of his claim, when the assignment is made, without regard to any collaterals he may hold, or the proceeds arising therefrom that may come into his hands.

APPEAL by J. W. Patten from the decree of the court below confirming the report of the auditor appointed to audit, settle, and adjust the accounts of Isaac S. Waterman, assignee of White, Stevens, & Co. In 1857 White, Stevens, & Co. made an assignment to said Waterman, in trust for creditors. On November 28, 1858, the account of the assignee was filed. Among the creditors of White, Stevens, & Co. were the firm of S. & W. Welsh, who presented a claim of $2,394.11, balance due on five notes amounting to $23,239.65. On July 11, 1857, S. & W. Welsh sold to White, Stevens, & Co. a large quantity of sugars, in hogsheads, by sample, amounting in value to the sum of $41,831.36, for which amount they took nine notes of White, Stevens, & Co. for $4,647.93, each at four months. The sugars, at the time of sale, were stored in the warehouse of S. & W. Welsh. Part of the sugars had been delivered, and four of the notes sold by them in the market, when the failure of White, Stevens, & Co. took place, and their assignment was made. S. & W. Welsh declined to deliver the remainder of the sugars, in consequence of the failure and assignment, and, on November 3, 1857, notified White, Stevens, & Co. by letter that they would retain the balance of the sugar as security for the five unpaid notes, amounting to $23,239.64. Our receipts, they said, for these notes, when paid, will be in full for sugar. If the notes are paid at maturity, they said, we will deliver the sugar; but if unpaid, we will then sell the sugar, and apply the proceeds towards the payment of said notes. They subsequently sold the detained sugars in the market, realizing therefrom the net sum of $21,026.28. On the 14th of November, when the sugar was sold to pay the notes then due, it was expressly stipulated with the purchasers that if two certain notes of the lot were paid, the sale of that proportion should be canceled. When the assignment was made there was due from the assignors to S. & W. Welsh the sum of $23,420.39. Of this sum, $21,026.28 was paid out of the proceeds of the sale of that part of the sugar which was retained after the failure of the assignors, Leaving unpaid the sum of $2,394.11. S. & W. Welsh claimed

that a dividend should be allowed them on the full amount of the five notes held by them, less the amount net received on account, which left $2,394.11; alleging that the sugars were held as collateral, and that, according to the decisions in Pennsylvania, the dividend to which the creditor is entitled is the amount of indebtedness at the time the assignment was made, without regard to any collaterals he may hold, or the proceeds arising therefrom that may come into his hands. On the other hand, it was argued that the retention of the sugars, and stoppage in transitu by S. & W. Welsh, was a rescission of the contract, and an election on their part to take the sugars, and look to them alone for payment of the remaining indebtedness; that having sold some of the notes, they were not entitled to a dividend until the full amount, as received by them from the sale of the sugars, was brought into a common fund with the rest of the assigned estate; and that, under all circumstances, they were only entitled to a dividend on the balance remaining due, and not on the full amount of the notes. The auditor reported in favor of the claim, and allowed a dividend on $2,394.11, with interest. The report was confirmed, and J. W. Patten, a creditor of White, Stevens, & Co., appealed.

John C. Bullitt, for the appellant.

Fallon and Serrill, for the appellees.

By Court, STRONG, J. The first position taken by the appellant is, that S. & W. Welsh are not creditors of White, Stevens, & Co., the assignors. It is insisted that their detention of the sugars sold, on the insolvency of the vendees before delivery, was a rescission of the contract of sale, and that consequently the notes given for the price are not recoverable.

This position is not maintainable. Notwithstanding the doubts expressed in some of the older cases, the modern decisions clearly show that neither the stoppage of goods sold while in transitu, nor the exercise of the analogous right of detention before any transitus has commenced, operates as a rescission of the contract of sale. And in this the elementary writers generally agree. Thus in 2 Kent's Com. 541, it is said the right of stoppage does not proceed upon the ground of rescinding the contract, but as a case of equitable lien. It assumes its existence and continuance. Story on Sales, sec. 320, asserts the same thing. So does Brown on Sales, 638, and Whittaker on Stoppage in Transitu, 149.

AM, DEC. VOL. LXXXIV-31

And it must be so, for the cases agree that the vendee may, at any reasonable time after the vendor has stopped the goods, enforce his claim to them by the payment of the purchasemoney, according to the terms of the original contract, and the vendor may also, notwithstanding his exercise of the right of the stoppage, maintain an action against the vendee for goods bargained and sold, provided he be ready and willing to surrender the goods, according to the terms of the original contract: Lickbarrow v. Mason, 6 East, 27, note; Newhall v. Vargas, 15 Me. 314 [33 Am. Dec. 617], where the decisions are reviewed at length; Kymer v. Suwercropp, 1 Camp. 109. We need not, however, discuss this general principle at length, for even if it be in doubt, it is plain that the stoppage in this case could not work a rescission of the sale. Part of the sugars had been delivered to White, Stevens, & Co., and had been by them resold. It was therefore impossible to put the parties into their original position. In 2 Kent's Com. 480, it is said that "a contract cannot be rescinded without mutual consent, if circumstances be so altered by a part execution that the parties cannot be put in statu quo; for if it be rescinded at all, it must be rescinded in toto." When, therefore, the Messrs. Welsh detained that part of the sugars which had not been delivered at the time of the failure of the vendees, they did not thereby annul the sale, but they held the goods as a security for the payment of the stipulated price. Of this they gave notice to the vendees, expressing their willingness to deliver the sugar detained if the notes given. for the price should be paid at maturity, and avowing their intention, if the notes were not paid, to sell the sugar, and apply the proceeds to the payment of the notes. There was, then, nothing in intention or in act to rescind the sale. Of course, the subsequent sale of the part detained could work no such effect. If the sale was wrongful, a special action on the case might have been brought against the vendors, and that is all: Bloxam v. Sanders, 4 Barn. & C. 941. In Kymer v. Suwercropp, 1 Camp. 109, and Newhall v. Vargas, 15 Me. 314 [33 Am. Dec. 617], it was held that a vendor may, after notice, and a reasonable time to allow the vendee to pay for the goods, sell them, and apply the proceeds to the payment of the price; and should a balance still remain unpaid, the vendor may recover it from the vendee. And it is impossible to hold that a resale of part of a lot of goods by a vendor, after a vendee has obtained the other part, even if wrongful,