Harvey Clap versus Asa Smith, 16 Pick. 247

Wilde J. delivered the opinion of the Court. The plaintiff claims under an assignment or sale of the property in question from one William Hart; and the defendant claims under an attachment of the same property, which was made after the assignment to the plaintiff; so that the case turns on the validity of that assignment.

The first objection to the assignment is, that the property attempted to be assigned, at the time of the delivery of the deed of assignment, was not sufficiently described or identified, there being no description of the property, excepting by reference to a non-existing schedule, which was not annexed to the assignment until the day after the delivery. This objection cannot we think be sustained ; for although the assignment, at the time of the delivery, were invalid as an "nstrument of conveyance for uncertainty, yet, as the

schedule was annexed the next day by the consent of the parties and before the defendant’s attachment, the objection fails. The annexation of the

schedule of the goods with the consent of the parties, may be considered as equivalent to a redelivery, or as curing the defect in the assignment as to uncertainty. It has been argued, that if the deed was void for uncertainty at the time of the delivery, it would not afterwards be rendered valid by any alteration with consent of parties, without a redelivery. The case of Coit v. Starkweather, 8 Connect.

R. 289, was cited in support of this pos tion ; but ™ that case the deed altered was a deed of land, which, by the law of Connecticut, must be attested by two witnesses and acknowledged before a magistrate ; and it seems to be admitted by the Court, that but for the statute the alteration would have been good and effectual, at common law, to render valid a defective deed. It is not universally true, that a deed void in its creation cannot be rendered afterwards valid by consent of parties ; and there seems to be no good reason for such a severe rule of law.

But if the instrument was not valid as a bill of sale, it may be good as a declaration of trust; and it was competent for the plaintiff to prove by parol evidence, that the goods were delivered to him, under the trust thus created ; and this would constitute a legal transfer of the property ; and so it was decided in the case of Drakeley v. Deforest, 3 Connect. R. 272, cited by the defendant’s counsel. But if the annexation of the

schedule of the property were necessary to complete the sale, wo are of opinion, that it was not a void act because done on Sunday. The case of Geer v. Putnam, 10 Mass. R. 312, is decisive on this point ; and we think there is no sufficient reason for overruling that case. That case was decided in 1813, and Chief Justice Parsons says, that the same principle had been laid down in a former case ; and the law has ever since been considered and recognised as the law of this Commonwealth.

The legislature has since revised and altered some of the provisions of the act of 1791, c. 58, and the subject of the due observance of the Lord’s day has been much discussed ; but no alteration has been made in the law as laid down in the case of Geer v. Putnam. Under these circumstances we feel bound to abide by the rule of stare decisis. Judgment on the verdict