caused them to be printed, and, about January 18, 1840, consigned some of them to the defendants, for sale on commission; and the defendants, without notice of the above bargain, made advances thereupon. The company never procured H. and B.'s acceptance, nor did the plaintiffs demand it, or reclaim the goods, till after the above consignment. March 28, 1840, the plaintiffs demanded the goods of the defendants, who refused to deliver them. Held, the contract of the plaintiffs and the company was not an absolute, but a conditional, sale; that the plaintiffs had not waived the conditions; that they still retained their title to the property; and the defendants were liable to them in trover. Dresser, &c. v. Waterston, 3 Met. 9.

6. Held, the measure of damages was the value of the goods, not after printing them, but at the time of delivery. -- Ibid.

7. Where a proposal to purchase goods is made by letter sent to another State, and there assented to, the contract of sale is there made. M'Intyre v. Parks, 3 Met. 207.

8. Contract between A. and B., his debtor, made in September, as follows: "I, A., agree to purchase, and do hereby purchase, of B." a quantity of cheese, if he makes as much," and certain cattle, at fixed prices; "B. to keep the cattle on his farm free of expense until foddering time, if there cannot be any sale made that will answer before; the cheese to be kept until the first of November next, unless called for sooner; and for the payment of the amount of these articles A. is to discharge all the claims he may have against B., and the balance he is to pay in cash whenever demanded." Held, this was not a present sale, but a contract which was executed by a delivery from time to time of the articles, and that those not delivered still belonged to B.- Mason v. Thompson, xviii. 305.

B. Validity of a sale between the parties, and suits relating thereto; delivery; stoppage in transitu.

1. If the vendor of goods under an entire contract deliver a part and refuse to deliver the rest, and the purchaser retain the part delivered, he is liable for the proportional price of such part, deducting any damage arising from breach of the contract. Bowker v. Hoyt, xviii. 555.

2. In case of a sale on condition, which the purchaser fails to perform, but retains the goods, and converts them to his own use; if the vendor rescind the sale, he may maintain trover, but

cannot waive the tort and sue in assumpsit. -Allen v. Ford, xix.

217.

3. Where several articles are sold together for one gross price, and the vendor delivers a part but refuses to deliver the rest; the purchaser cannot maintain an action for money paid or money had and received to recover back the price, if he retain the articles received, but must sue upon the special contract. - Miner v. Bradley, xxii. 457.

4. Where goods are assigned, a part of which are delivered in token of delivery of all, this is sufficient to pass the title to another part, being at a place distant from that of the delivery, and in the hands of one having a lien for labor bestowed upon them. -Legg v. Willard, xvii. 140.

5. If the person, having such lien, after the assignment attach the goods for his debt, this discharges the lien, and the assignee, after demand and refusal, may bring trover against the attaching officer. Ibid.

6. Where one partner sells partnership goods to another, a delivery is necessary, but it consists rather in the surrender of the possession and control of the goods, than in the actual tradition of them.-Shurtleff v. Willard, xix. 202.

7. It is sufficient to deliver a part of goods sold, for the whole, though lying at different and distant places. - Ibid.

8. A., residing at Boston, having ordered certain goods from B. at Liverpool, B. shipped them in a general freighting vessel, which was consigned to B. and designated by A. A bill of lading was obtained by B., by which the goods were to be delivered to A. B. having withheld the bill of lading from A., and afterwards enclosed it with an invoice in a letter to his, B.'s agent, with directions to deliver it to A. only on condition of his paying for the goods; held, after the above facts, which seemed to constitute a sale and constructive delivery, B. had no power thus to make the delivery a conditional one, and deprive A. of his title. — Stanton v. Eager, xvi. 467.

9. A., residing at Boston, ordered certain goods from B. at Liverpool. B. shipped them in a general freighting vessel, which was consigned to B. and designated by A.; and a bill of lading was obtained by B., by which the goods were to be delivered to A. In an action of trover against the agent of B., it appeared that a balance was due from A. to B., independently of the cost of the merchandise; that, before the ship arrived in Boston, A. became insolvent, and assigned his property to the plaintiffs for benefit of creditors, agreeing to indorse and deliver the bill of lading of the

merchandise to the plaintiffs, as soon as he should receive it; that the bill of lading was received by A. after the assignment, and handed by him to the plaintiffs, unindorsed, but was indorsed after commencement of suit; and, upon the arrival of the vessel in Boston, the defendant, as agent of B., being also the ship-owner, obtained actual possession of the merchandise. Held, this was a stoppage in transitu by B.; and that it was effectual as against the plaintiffs, the assignees of A., though they supposed, when the assignment was made, that at the time of the execution of the orders for shipment of the merchandise, there was a balance due from B. to A.- Ibid.

10. Where some act, such as weighing or measuring, remains to be done in relation to articles sold, and there is no evidence tending to show the intention of the parties to make an absolute and complete sale; the purchaser gains no title, till this act is done. Otherwise, where a contrary intent appears, and payment of the price is not a condition precedent of the transfer. - Riddle v. Varnum, xx. 280.

11. A., being the owner of a quantity of timber, lying in a millpond at the termination of a canal, under the charge of the canal superintendent, contracted with B. for the sale of it, receiving from him a writing as follows "Received of A. four shots of white-oak plank, &c., for which I promise to pay him $26 per thousand, board measure. The above timber delivered in the mill-pond," &c.; and at the same time giving B. this receipt :"Received of B. $200 in part pay for, &c. Remainder to be paid in ninety days from surveying. The canallage to be paid by B., when he takes the plank and timber from the pond." A. further agreed, that B. might have the timber measured by the superintendent, and that he would acquiesce in the result. Before any measurement, C. failed, and the timber was attached as his. Held, if there was a delivery to B., and if the parties intended to make the sale complete before measurement, the title had vested in B. Ibid.

12. A., owning many barrels of beef, all of the same value and in one parcel, sold a certain number of them to the plaintiff and received the price, a certain number to B., and reserved the rest for himself. Delivery was made to the agent of the purchasers. Afterwards, B. took the number sold to him, and A. the number reserved. Held, the barrels remaining with the agent became the property of the plaintiff, who might therefore maintain trover against a person that took and converted them. Valentine v. Brown, xviii. 549.

C. Validity of a sale as to creditors of, or subsequent purchasers from, the vendor; fraudulent sales; delivery.

1. Goods in possession of A., as lessee, were sold by B., the owner, and a bill of parcels delivered to C. B. and C. gave notice of the sale to A., and requested him to keep possession for C., but he did not consent to do so. They were afterwards attached as B.'s property. Held, there was a sufficient delivery, and the attachment was unlawful. Carter v. Willard, xix. 1.

2. Otherwise, if no notice were given to A. - Ibid.

3. An attachment of personal property is a mere lien, subject to which the owner may sell it, and consummate the sale by such delivery as may be practicable, whether actual or symbolical. Arnold v. Brown, xxiv. 89.

4. The attaching officer may legally be the purchaser, notwithstanding his relation to the debtor, the plaintiff and other creditors. - Ibid.

5. A debtor, being about to leave the country, wrote to the plaintiffs, his creditors, requesting them to settle certain accounts for him as for themselves, including an adventure of coffee shipped by him to Smyrna, and pass the proceeds to his credit, and, if there were any balance due him, to pay it to A. & B. The same day, the plaintiffs by letter accepted the proposal. The debtor procured the guaranty of a third person to the plaintiffs, that the coffee should net a certain sum; effected insurance upon it, payable to them; indorsed the bill of lading in blank and delivered it to them, whereby the coffee was deliverable to a consignee in Smyrna, or his assignee; and wrote to the consignee to remit the proceeds of the coffee to the plaintiffs, and abide by their orders, if any new and different ones should be given. The consignee sold the coffee, and invested the proceeds in opium, which he sent, with the invoice and bill of lading, addressed to the debtor; and, upon arrival of the opium, the plaintiffs entered it and paid the duties, and, in five days afterwards, while it remained in the custom-house stores, it was attached by A. and B. The plaintiffs bring replevin against the officer. Held, they were the purchasers of the property, had been guilty of no laches in taking possession, and should recover in the action. -Pratt v. Parkman, xxiv. 42.

6. Part of a vessel at sea was sold by B. to A., who resided at Portland. She arrived at Boston with a return cargo, and was there eleven days, when she sailed on another voyage, under the

direction of C., whom A. had requested to take charge of her. It did not appear, that A. knew she was at Boston. After she returned there from the second voyage and was unloaded, she was attached upon a writ against B., A. not having taken formal possession. Held, there had been no laches on his part, and his title should prevail over the attachment. -Turner v. Coolidge, 2 Met.. 350.

7. Goods attached were assigned by the owner, and then again attached by the same officer. Held, a delivery of the instrument of assignment was a delivery of the goods, and the assignee, having paid the claim of the first attaching creditor, might, upon giving notice to the officer of such payment and of the assignment, and demanding the goods, maintain replevin therefor against him. Whipple v. Thayer, xvi. 25.

8. The plaintiff sold three fourths of a vessel to A., and one fourth to B., and A. and B. afterwards reconveyed to him. A creditor of A. having afterwards attached the vessel, in an action against the officer, held, evidence of fraud in the reconveyance from B. was not admissible, to prove fraud in the reconveyance from A. Boyd v. Brown, xvii. 453.

9. A., the owner of a vessel, gave a bill of sale of her, without consideration, to C., in order to prevent an attachment by his creditors; and C., with A.'s consent, conveyed her to B., one of the creditors. Held, B.'s title was valid against the other creditors. - Ibid.

10. After the latter conveyance, the officer, who had previously attached the vessel on behalf of the other creditors, discharged the keeper, and delivered the vessel, then lying at A.'s wharf, to B. Held, such delivery, if made with the consent and on behalf of A., was valid. — Ibid.

11. B., in consideration of the conveyance to him, agreed to indorse a certain sum on a note against A. The vessel was subsequently attached by A.'s creditors. Held, if the indorsement was subsequent to the attachment, and ante-dated, these facts were not conclusive evidence of fraud in the transfer, but were for the consideration of the jury. — Ibid.

12. A father gave to his daughter, who was of age and lived with him, a female calf, whose dam was dead, if she would bring it up. She brought it up by hand, it was fed on his farm, and its milk, after it had grown up, used in the family. He made no charge for her board or for keeping the cow, nor she for her work or for the milk. The cow having been attached as the father's, held, there was sufficient proof of a gift and delivery to vest a title in the daughter, and the attachment must fail. - Martrick v. Linfield, xxi. 325.