#### Jonathan Buffington and Another *versus*Seth Curtis and Others.

The delivery of a bill of sale of a chattel to a third person, by the vendor, for the use and benefit of the vendee, and possession taken as soon as might be after-wards, constituted a valid transfer.

A mere endorsement of a bill of lading, without a delivery of it, does not transfer the property of goods.

Replevin of the brig *Sophronia,*and her cargo, consisting of 220 tons of salt and 15 tons of coal, alleged to be the property of the plaintiffs. The defendants plead, in bar, that the property of the chattels replevied, at the time of the taking thereof by them, was in one *Joseph T. Wood,*and not in the plaintiffs; and issue being joined on the traverse, the same was tried before *Wilde,*J., September term, 1817.

The plaintiffs read in evidence a bill of sale of three quarters of the said brig, from the said *Wood*to themselves, and dated the 16th of July, 1816; also, a bill of lading of the salt, with an assignment *470thereof by the said *Wood*to the plaintiffs, which assignment was also dated on the same 16th of July; also, a bill of sale of the coals, of the same date. They also produced an agreement made by the said *Wood*with them, dated February 26, 1816, in which he * engages to consign the said brig and her cargo, which she was to take on board at *Liverpool,*to the plaintiffs; and that the consignment shall amount to 20,000 dollars ; and authorizes them to insure 11,000 dollars on the cargo and freight. On their part, the plaintiffs were to accept his draft to the amount of 10,000 dollars, payable in four months from the 1st of March then next; and *Wood*agrees not to draw for any thing on account of the shipment by the *Sophronia.*The plaintiffs were to charge a commission on the said advance, and for effecting the insurance, and also interest from the maturity of their acceptance until remunerated by the sales of the cargo. In case the said cargo should not amount to 10,000 dollars, and the said commissions and interest, at the current prices at the time of the arrival of the brig from *Liverpool*at *Boston, Wood*agrees to make up the deficiency on demand; and he also engages to renew a part of the said draft for a further term of sixty days, in case it should be inconvenient to the plaintiffs to pay the whole when it should fall due.

The plaintiffs proved, by the said *Wood,*that the said agreement was made at the time it bears date; that they advanced to him the said 10,000 dollars, in compliance with his proposal; that it was understood by the parties at that time, though not expressly so agreed, that if the said cargo, on its arrival in a port of the *United Stales,*should be insufficient to repay the plaintiffs the said sum advanced, and their commissions, they were to be secured by a transfer of the said brig; that, some time in July, 1816, the plaintiffs applied to him, then in *Boston,*for a bill of sale of the said three quarters of the brig, in conformity to the understanding of the parties before stated; that he then declined giving such bill of sale, saying that he had not a copy of the register necessary to be inserted therein, and that he had not come to a resolution to make such bill of sale; but that if, on his return to *Wiscasset,*where his home was, *he*should conclude to comply with their request, he would make the bill of sale, and deliver it to the collector of the * customs for the port of *Wiscasset*for their use and benefit; to which conditional proposal the plaintiffs made no reply, but seemed to be satisfied ; that, on the 16th of said July, the day after the brig’s arrival at *Wiscasset,*he made such a bill of sale, and on the same day delivered it to the said collector ; and at the same time made the assignment of the salt by a regular endorsement of the bill of lading, and on the same day gave the *471plaintiffs information of these transactions by letter; that, a few days after, the plaintiff *Buffington*arrived at *Wiscasset,*which, from other testimony, appeared to have been on the 19th of July, when it was discovered that the coals were not included in the bill of lading; whereupon *Wood*immediately made, and delivered to *Buffington,*the said bill of the coals, it having been his intention to assign to the plaintiffs the whole cargo, according to his agreement. The said *Wood*did not recollect die transmitting the said bill of lading to the plaintiffs, and could not say that it was delivered before *Buffington’s*arrival at *Wiscasset;*at which time he went on board the brig, and demanded possession of the same, and of the cargo, from the master.

The defendants, being deputy sheriffs of this county, proved that they attached the chattels replevied, on the 18th of said July, by virtue of sundry writs against the said *Wood;*and they introduced evidence with the view to show that said sales of the brig and cargo were void, being fraudulent as against creditors; and it was contended on their part, upon the whole evidence, that the said sales were not valid at the time of taking aforesaid; 1st. Because the said bill of sale, and the said bill of lading and assignment, had never been delivered to the plaintiffs, or their authorized agent, before the attachment made by the defendants — the said collector having had no authority, from the plaintiffs, to receive in their behalf the said bill of sale of the brig; 2dly. That, said sales were not made *bona fid.e,*but were fraudulent as against creditors.

* With a view to reserve, for the consideration of the whole Court, all questions in relation to the sales of said brig and cargo to the plaintiffs, excepting such as related to the supposed fraudulent character of the transactions, the judge instructed the jury to find for the plaintiffs, if they should be of opinion that the said sales were made *bona fide ;*and they accordingly returned a verdict for the plaintiffs.

If the Court should be of opinion, on the facts above stated, that the sales aforesaid were not valid in law, and that the plaintiffs had no lien on the chattels replevied, the verdict was to be set aside, and the plaintiffs to become nonsuit; if the Court should be of opinion that the same were valid in law as to part of the chattels, and not valid as to the residue, the Verdict was tobe altered, in conformity to such opinion ; but if the opinion of the Court should be that all the said sales were valid, judgment was to be entered agreeably to.the verdict. v

The cause was argued, at the last June term in this county, by *Mellen*for the plaintiffs, and by *Bailey*and *Longfellow*for the defendants.

*472*It was argued for the defendants,*that there was no evidence of an agreement or assent on the part of the plaintiffs to receive the conveyance of the vessel. The collector of the port, to whom the bill of sale of the vessel was delivered, was wholly a stranger, hay ing no agency or authority from the plaintiffs to receive or assent to the sale. If the sale is to be considered an absolute one, it was void for want of consideration. No money was paid, nor any debt discharged. It was in *Wood’s*power, at any time before the bill of sale came to *Buffington’s*hands, to have reclaimed and cancelled it. If the vessel had been lost in that interim, the loss could not have been thrown upon the plaintiffs. 'If the transfer is to be considered as a pledge, to secure the plaintiffs, possession was necessary.

The agreement in February was merely to consign the cargo, not to sell it to the plaintiffs. The actual sale was not completed until *Buffington*attempted to obtain * possession, which was the day after the attachment by the defendants ; and then nothing was paid for it. (1) As to the coals, the plaintiffs have made no title.

*Mellen.*

The fairness of the transaction, relative to the transfer of the ship, was fully argued to the jury, was well referred to them by the judge, and has been found for the plaintiffs. A large sum of money had been advanced by the plaintiffs, which differs this case from all the cases referred to by the defendants, The collector is to be considered as the agent of both the parties, and thus *Wood,*could never have recalled the bill of sale. The want of a consideration paid is nothing more than a circumstance authorizing a presumption of fraud ; and here the jury have negatived that presumption. The bill of lading of the salt was assigned before the attachment, and the plaintiffs were guilty of no delay in endeavoring to obtain possession. The plaintiffs may be considered as the factors of *Wood,*having the consignment of vessel and cargo for their security and indemnity; and the interposition of the sheriff could not deprive them of their rights. (2)

The action stood continued for advisement, and now the opinion of the Court was delivered by

(1)

4 *Mass. Rep.*663, *Portland Bank*vs. *Stacey*& *Al.*— 5 *Mass. Rep.*144, *Widgery & Al.*vs. *Haskell.*— *Ibid.*163, *Lane & Al.*vs. Jackson.— 10 *Mass. Rep.*456, *Maynara*vs. *Maynard & Al.*— 1 *D. & E.*747, *Hibbert*vs. *Carter.*— *2 D. & E.*71, *Lickbarrou*vs. Mason.—1 Ld. *Raym.*271, *Evans*vs *Martlett.*— 4 *Burr.*2046, *Wright & Al.*vs. *Campbell & Al.*— *Abbott on Shippings,*422. — 1 *B. & P.*568, *Haille*vs. *Smith,*in Error.

(2)

*2 Easty*227, *Hammands & Al.*vs. *Barclay & Al.*— Abbott, 424.

Parker, C. J.

We intimated an opinion, after the argument at the last term, that the transfer of the ship was valid; the parties having desired to know to whom she lawfully belonged, that she might be employed by the owner without further loss.

*473It having been found by the jury that the transaction was *bond fide,*it only remained for us to determine whether, in point of law, the transfer, under the circumstances proved, was valid, (a) The objection was, that the bill of sale was not *delivered*before the attachment took place. But, as there was a previous agreement between the parties that the vessel should be transferred, — or, at least, an assent, on the part of the plaintiffs, to take the conveyance if *Wood*should conclude to execute it, and also that the bill of sale should be left with the collector, for the use of the plaintiffs, — * we are all satisfied that the delivery to the [ * 533 ] collector, for the plaintiffs, and the acceptance of it by them, as soon as possible after they were informed that it was so delivered, was sufficient to complete the transfer ; one of the plaintiffs having taken possession as soon as it was practicable after the arrival of the vessel at *Wiscasset.*The transfer of the ship, then, must be considered as having been made before the attachment, which was on the 18th of July, the bill of sale having been made and delivered on the 16th to the collector, in pursuance of the agreement; „and possession of it, and of the vessel, having been taken by the plaintiffs on the 19th. *(b)*

The salt and coal stand on different grounds from the vessel. It does not appear when the bill of lading of the salt came into the possession of the plaintiffs; and it is certain that the bill of sale of the coal was not delivered until after the attachment. Notwithstanding the intention of *Wood*to assign these articles, and the inchoate steps taken for that purpose, the property was not changed by any thing done ; because there was no assent, on the part of the plaintiffs, until after the attachment.

It appears, by the cases of *Hibbert*vs. *Carter, TÁckbarrow*vs. *Mason,*and *Haille*vs. *Smith,*which were cited in the argument, that a mere endorsement of a bill of lading, without a delivery of it, does not transfer the property of goods. At least, this is to be understood as decided ; a delivery of the bill of lading being deemed essential in all the cases. Had the bill of lading, in this case, been left with the collector, as the bill of sale of the ship was; or had it been enclosed in a letter directed to the plaintiffs, and put into the *474post-office ; perhaps either of those two acts would have amounted to a constructive delivery. But the bill of lading had not, as we can perceive, passed from the hands of *Wood*when the attachment was made ; and the bill of sale of the coal was not made until the 19th, although dated the 16th, of the month.

Under these circumstances, we are constrained to say, that what was done amounted only to an *intention*to transfer, * unexecuted ; and that the property, in point of law, remained *Wood’s*when the attachment was made.

The verdict must therefore be altered, so as to find that the property of the ship was in the plaintiffs, and that the property in the salt and coal was not in the plaintiffs; and there must be judgment for a return of the latter articles, with damages to the amount of six per cent, on double the value of those articles, as estimated in the replevin bond ; and for costs for the plaintiffs, *(a)*

(a)

**Vide note to *Maynard*vs. *Maynard & Al.*10 *Mass. Rep.*458, 3d ed. — *Doe*vs. *Knight,*5 *B. & C.*671. — *Brooks*vs. Marbury, 11 *Wheat.*178. — *Marbury*vs. Brooks, 7 *Wheat.*556. *—Murray*vs. *Stair, 2 B. & Cr.*88.

(b)

*Badlam,*vs. *Tucker & Al.*1 *Pick.*389.— *Gardner*vs. *Howland, 2 Pick.*601, 602. — *Hodges*vs. Harris, 4 *Pick.*360. — *Blake*vs. *Williams,*6 *Pick.*286. — Sed vide *Lanfear*vs. *Sumner,*17 *Mass. Rep.*110. — *Shumway*vs. Rutter, 7 *Pick.*56. — *Flagg*vs. *Dryden,*7 *Pick.*52. — Where a share in or part only of a vessel is conveyed, no delivery is necessary. *—Addis*vs Raker, 1 *Aust.*222. — *Haskell*vs. *Greely,*3 *Greenl*125. *—Butterfield*vs. *Baker.*5 *Pick*525. — *Beaumont*vs. Crane, 14 *Mass. Rep.*400.

(a)

**As to the delivery of the endorsed bill of lading, see note to *Maynard*vs. *Maynard & Al.*10 *Mass. Rep.*458, 3d ed., and the cases there cited.