sale before the goods are taken from his possession, or if the vendee takes possession and leaves the property in the hands of the bailee for a special purpose. Notice to a bailee in possession of goods of a sale thereof is sufficient to effect a change of possession of the goods into the hands of the vendee." Where the purchaser of goods in storage in the warehouse of a third person, at the time of payment and execution of the bill of sale, is given also the warehouse receipts thereof, and then allows the goods

to remain in the warehouse, there is such a change of possession as to make the transfer good as against the seller's creditors. The possession of the warehouse receipts is equivalent to possession of the property itself."3 The rule that, to render the sale of personal property valid against the seller's creditors, it must be accompanied by an immediate, open, notorious, and continued change of possession, has no application where, prior to the sale, the seller has bailed the property to a third person, and the bailee has taken open and notorious possession thereof; but in such case a direction by the purchaser to the bailee to hold the property for him is sufficient." In some cases it has been held that unless the bailee consents to act as the agent of the purchaser, he ought to take actual possession of the property," and that unless the bailee assent and agree to keep the property for the vendee, it is liable to be attached by creditors of the vendor." But it has also been held that in case of the bailee's non-consent and retention of the property he will become the vendee's agent by operation of law."

18. Grain stored in elevator.- Where several parties store grain in a grain elevator, and it is put into one mass, according to the usage of the trade, they are tenants in common thereof and

73. Kerner v. Boardman, 133 N. Y. 539, 30 N. E. 11, 48, aff'g 14 N. Y. Supp. 787; Niagara County Nat. Bank v. Lord, 33 Hun (N. Y.), 557; Broadwell v. Howard, 77 Ill. 305. But giving a bill of sale and warehouse receipts for goods in the possession of a vendor who also is a warehouseman, is not a sufficient delivery. Stoneford v. Scannell, 10 Cal. 7; Stewart V. Scannell, 8 Cal. 80.

74. Hendrie, etc., Mfg. Co. v. Collins, 29 Colo. 102, 67 Pac. 164, rev'g 13 Colo. App. 8, 56 Pac. 815; Christy v. Ashlock, 93 Ill. App. 651.

75. Buhl Iron Works v. Teuton, 67 Mich. 623, 35 N. W. 804; Carpenter v. Graham, 42 Mich. 191, 3 N. W. 974; Sheldon v. Warner, 26 Mich. 403.

76. Whitney v. Lynde, 16 Vt. 579.

77. Buhl Iron Works v. Teuton, 67 Mich. 623. There can be no actual delivery until the bailee accepts the order for delivery, but the bailee may lay himself liable to an action for refusing to do do. Bentall v. Burn, 3 B. & C. 423, 10 E. C. L. 197, 5 D. & R. 284, 3 L. J. K. B. O. S. 42, R. & M. 107, 21 E. C. L. 712, 27 Rev. Rep. 391.

the proprietors of the elevator are their agents, and a valid title to a quantity of the grain will pass by a delivery from the vendor to the vendee of an order to deliver such quantity, directed to the owners of the elevator, and accepted by them in the usual manner by retaining the order and entering it on their books, although there is no separation of the quantity sold from the rest of the

19. Possession by agent or servant of vendor.-Where the known and previously recognized agent of the seller remains in possession of personal property, there must be substantial and visible signs of a change of title, in order to protect the sale against third persons, and a mere employment, by the vendee of personal property, of the vendor's servant to take charge of it for him, is not a sufficient change of possession as against creditors of the vendor." But there is a change of possession, so as to save a sale of chattels from being fraudulent as to creditors, where delivery is made at the time of the sale, and the purchasers constitute an employee of the seller their agent to hold the property for them, and it is given into his possession for such purpose.

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§ 20. Delivery of a part for the whole.-An actual delivery of a part of the property in token of a delivery of the whole is a sufficient delivery to enable the purchaser to hold the property as

78. Cushing v. Breed, 96 Mass. 378, 92 Am. Dec. 777.

79. Cal.-Mosgrove v. Harris, 94 Cal. 162, 29 Pac. 190; Chester v. Bower, 55 Cal. 46; Hurlburd v. Bogardus, 10 Cal. 518.

Conn.-Crouch v. Carrier, 16 Conn. 505, 41 Am. Dec. 156.

Ida.-Coombs v. Collins, 6 Ida. 536, 57 Pac. 310.

Ill.-Second Nat. Bank v. Gilbert, 174 Ill. 485, 51 N. E. 584, 66 Am. St. Rep. 306; Watkins v. Petefish, 49 Ill. App. 80.

Ind.-Seavey v. Walker, 108 Ind. 78, 9 N. E. 347.

Nev.-Sharon v. Shaw, 2 Nev. 289, 90 Am. Dec. 546; Doak v. Brubaker, 1 Nev. 218.

Pa.-Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. 542, 21 Am. St. Rep. 868.

Vt.-Flanagan v. Wood, 33 Vt. 332; Sleeper v. Pollard, 28 Vt. 709, 67 Am. Dec. 741.

80. Russell v. Haltom & Lester (Ark.), 89 S. W. 471.

against the creditors of the vendor,1 and a delivery of a part for the whole applies to all goods embraced in the contract of sale, although they happen to be scattered in different and distant places, even if in the hands of a person having a lien upon them.82

§ 21. Intangible property. The rules pertaining to a change of possession of goods and chattels upon a sale or pledge thereof, and the dominion required to be exercised by a purchaser, mortgagee, or pledgee of tangible property, cannot be applied to a sale or pledge of indebtedness intangible in itself, only the evidence of which, if in writing, is perceptible. The conditions are not the same, and the rules of law applicable to transfers of the two classes of property differ. As to one, the possession of which is evidence of ownership, the dealings must be open, visible, and public; while as to the other the business may be, as it usually is, private. The necessities of business require it. Aside from the provisions of the bankrupt law prohibiting preferences and subject to the rules of law relative to transfers of goods and chattels, debtors may transfer and pledge their personal property to their creditors in any manner they see fit.83 Debts and accounts on the books of an assignor, an equity of redemption in stocks and bonds which have been pledged, rights or benefits under an executory contract,86 and other choses in action,87 are not " goods and chattels" within the contemplation of the statute, and may be assigned by transfer and notice to the debtor. So a liquor tax certificate issued under the liquor tax law of New York is per

84

81. Leonard v. Davis, 1 Black (U. S.), 476, 17 L. Ed. 222; Hobbs v. Carr, 127 Mass. 532; Macomber v. Parker, 30 Mass. 175; Thompson Mfg. Co. v. Smith, 67 N. H. 409, 29 Atl. 405.

82. Legg v. Willard, 34 Mass. 140, 28 Am. Dec. 282.

83. Stackhouse v. Holden, 66 App. Div. (N. Y.) 423, 73 N. Y. Supp. 203.

84. Stackhouse v. Holden, supra;

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Kane v. Drake, 27 Ind. 29: Schawacker v. Ludington, 77 Mo. App. 415.

85. National Hudson River Bank v. Chaskin, 28 App. Div. (N. Y.) 311, 51 N. Y. Supp. 64.

86. Frankfort Chair Co. v. Buchanan, 21 Ky. L. Rep. 269, 51 S. W.

179.

87. Young v. Upson, 115 Fed. (U. S. C. C. N. Y.) 192; Livingston v. Littell, 15 Wis. 218.

sonal property, but it is not a chattel, and a transfer thereof as security for a loan is valid without change of possession.88 The words "goods and chattels " do not include choses in action, but only personal property which is visible, tangible, and movable." The sale of personal property is void as to creditors, unless possession is given before they acquire rights in the same; and if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor, to seizure and attachment in behalf of his creditors. This rule of law extends to the sale of a promissory note or bill of exchange," and to corporate stocks and bonds.91

§ 22. Delivery of bill of sale.-The delivery of a bill of sale or bill of parcels of the property sold to the purchaser, for a valuable consideration, with no actual delivery of the goods or chattels, when the property is reasonably susceptible of actual delivery, or with no symbolical delivery, is not sufficient to pass the title as against attaching creditors of the seller or subsequent purchasers in good faith.92

§ 23. Possession of land on which personal property is situated. Where goods described in a bill of sale are in the posses

88. Niles v. Mathusa, 162 N. Y. 546, 57 N. E. 184, aff'g 20 App. Div. 483, 47 N. Y. Supp. 38.

89. Booth v. Keloe, 71 N. Y. 341; State Trust Co. v. Casino Co., 19 App. Div. (N. Y.) 344, 46 N. Y. Supp. 492; Haskins v. Kelley, 1 Rob. (N. Y.) 170; Marsh v. Woodbury, 42 Mass. 436; Bacon v. Bonham, 27 N. J. Eq. 212; Kilbourne v. Fay, 29 Ohio St. 264.

90. Hill v. Hanney, 15 La. Ann. 654.

91. Pinkerton v. Manchester & L. R. Co., 42 N. H. 424.

92. Ark.-Davis v. Meyer, 47 Ark. 210, 1 S. W. 95.

Me.-McKee v. Garcelon, 60 Me. 165, 11 Am. Rep. 200.

Mass.-Dempsey v. Gardner, 127 Mass. 381, 34 Am. Rep. 389; Burge v. Cone, 87 Mass. 412; Veazie V. Somerby, 86 Mass. 280; Rourke v. Bullens, 74 Mass. 549; Packard v. Wood, 70 Mass. 307; Carter v. Willard, 36 Mass. 1; Shumway v. Rutter, 24 Mass. 56, 25 Mass. 443, 19 Am. Dec. 340; Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119.

Mo.-Mitchell v. Tinsley, 83 Mo. App. 386.

Nev.-Cornaita v. Kyle, 19 Nev. 38, 5 Pac. 666.

N. H.—Flagg v. Pierce, 58 N. H.