14 Me. 303 | Me. | 1837
After a continuance, the opinion of the Court was drawn up by
By a series of decisions, cited for the defendant, a delivery from Haley, the debtor, to the plaintiff, was necessary to give him a title against an attaching creditor. And the argument for the plaintiff is, that there was a sufficient delivery.' The lumber was pointed out to the plaintifij and he was informed by what mark it might be known. From the testimony it appears, that the plaintiff was requested to take it away, and make the best of it. But the plaintiff took no part of the lumber, nor exercised any act of ownership over it, but left it in the debtor’s possession as before, up to the time of the attachment, a period of two months. Considering, however, the nature and position of the property, it comes very nearly up to what has been required, to put it out of the reach of other creditors ; but upon the whole, in our judgment, there was not quite enough done to produce this effect; and these transactions are so likely to occasion false credit and fraud upon creditors, that the doctrine of constructive delivery ought not to be extended.
In Hunn v. Bowne, 2 Caines, 38, one Foley had purchased a quantity of cotton of one Rodman, and had given his note for it, but left it in Rodman’s store. Foley employed Huchinson, a broker, to sell it. Huchinson called on Rodman, desiring to see Foley’s cotton. Rodman directed one of his clerks to show it, Which he did in a fire proof store. Huchinson then bought the cotton of Foley, who gave an order for it on Rodman. Before presentment, Foley failed, and Rodman refused to deliver, and soId it to the defendant. The plaintiff, having title under Huchinson, prevailed, the jury being of opinion that die defendant purchased, with a full knowledge of these facts. Lansing v. Turner, 2 Johns. 16, was a case between the original parties, for a quantity of beef, which had been bought and paid for.
In Bailey v. Ogden, 3 Johns. 394, an agreement with the vendor, about the storage of the goods, and the delivery of the export entry to the agent of the vendee, were held not to be sufficiently certain, to amount to a constructive delivery, or to afford an indicium of ownership. In Rice v. Austin, 17 Mass. R. 197, the timber in question, was shipped to the plaintiff with an invoice and bill of lading, on his account and risk, and when it arrived, he ordered it to the navy yard in Charlestown. This was held sufficient evidence of possession in him, considering the nature of the property. In Shumway et al. v. Rutter, 8 Pick. 443, there had been a mixed possession, the vendee having taken a part of his purchase for his own use.
The strongest casé, and that most nearly resembling the one before us, is that of Jewett v. Warren, 12 Mass. R. 300. A bill of
In the case under consideration, there was not the slightest indication of a transfer of the property. It remained as before in the debtor’s mill-yard, still bearing the mark it then had, being the initial letter of the debtor’s surname. And thus it continued, without a single movement on the part of the plaintiff, to avail himself of the property. To sustain his title, under these circumstances, against an attaching creditor, would be going farther than can be justified by the principles, by which cases of this sort have been governed.
Exceptions overruled, -