The opinion of the court was delivered by
Collamer, J.
When property is sold and paid for at the time, there is no debt or credit,, and, of course, no right to charge on book. If there bo any special agreement in relation to the property which is delivered in payment, giving rise to a subsequent claim, it must be by an action on such agreement. Indeed, there seems to be little controversy between the counsel as to the principle. Both agree that the plaintiff must have the right of charge when the property is delivered. We consider that no man canhave a right of *465charge unless there is a debt existing, payable either on demand or at some subsequent time. For the application of this principle, every thing depends on the construction of the' report, and here is where the counsel differ. For the plaintiff it is insisted that the report shows that the plaintiff sold the boards on a credit, and took the demand against Wash-burn, and if he succeeded in turning it on his claim, it was payment, and not until then. The defendant insists that he sold the demand and took pay in boards, and that no credit existed, and that whatever special contract he made as to the demand must be enforced by an action thereon. The report shows, first, that there was a controversy whether the boards had ever been delivered, which, it seems, the auditor found on the plaintiff’s oath and other testimony. The report then proceeds in these words: “ At the same time and place where said boards were delivered, the said Crocker sold the said Nason a claim against one Ira Washburn for the sum of fifteen dollars,” &c., “and said boards were^ said Crocker in payment for said claim sq to Nason.” From this it appears to us, that, there was an exchange of property, and no either side. No right of charge, then, existed byeither'i ty, and subsequent contingencies could not giV
JudgmS^affirmecT,