The delivery may be symbolical, or of a part for the whole; (n) 1 and a delivery of the key, the property being locked up, is so far a delivery of the goods, that it will support an action of trespass against a subsequent purchaser who gets possession of them. (o) If the goods are in possession of another than the vendor, an order to him, with payment of the price by the buyer, completes the sale. (oo) A sale

(mm) Stinson v. Clark, 6 Allen, 340. See also Burge v. Cone, 6 Allen, 412; Dewart v. Clement, 48 Penn. St. 413; Miles v. Edelen, 1 Duvall, 270; State v. Rosenfeld, 35 Mo. 472.

(mn) Walden v. Murdock, 23 Cal. 540.

(mo) King v. Phillips, 8 Bosw. 603; Oswego Starch Factory v. Lendrum, 57 Ia. 573; and see Rateau v. Bernard, 3 Blatch. C. C. 244, and Anderson v. Nicholas, 28 N. Y. 600.

(mp) King v. Eagle Mills, 10 Allen, 548.

(mq) Bank of Beloit v. Beale, 24 N. Y. 473.

(mr) Manning v. Albee, 11 Allen, 520.

(n) See Chamberlain v. Farr, 23 Vt. 265; Brewer v. Salisbury, 9 Barb. 511; Evans v. Harris, 19 id. 416; Packard v. Dunsmore, 11 Cush. 282; Vining v. Gil-breth, 39 Me. 496; Hobbs v. Carr, 127 Mass. 532.

(o) Chappel v. Marvine, 2 Aik. 79; Benford v. Schell, 55 Penn. St. 393.

(oo) M'Cormick v. Hadden, 37 Ill. 370.

16 Ohio, 547, 552; Kleine v. Katzenberger, 20 Ohio St. 110; McCully v. Swackhamer, 6 Ore. 438; Meade v. Gardnier, 13 R. I. 257; Pregnall v. Miller, 21 S. C. 385; Carney v. Carney, 7 Baxt. 204; Edwards v. Dickson, 66 Tex. 613; Lipe v. Earman, 26 Gratt. 563; Williams v. Porter, 41 Wis. 422; Norwegian Plow Co. v. Hanthorn, 71 Wis. 529.

In many States the matter is regulated by statute.

1 As by a tender of warehouse receipts. Gregory v. Wendell, 39 Mich. 337; 40 Mich. 432. The delivery of a common carrier's receipt by an owner of goods, as security for an advance of money, with the intention to transfer the property in the goods, is a symbolical delivery of them, and vests in the person making the advance a special property in the goods sufficient to maintain replevin. Green Bay Bank v. Dearborn, 115 Mass. 219; Stollenwerck v. Thacher, id. 224; Fifth National Bank of Chicago v. Bayley, id. 228; Newcomb v. Boston, etc. R. Co. id. 230; Alderman v. Eastern R. Co. id. 233. Of ponderous or intangible articles a constructive delivery is sufficient. Audenried v. Randall, 3 Cliff. 99; Puckett v. Reed, 31 Ark. 131; People's Bank v. Gridley, 91 Ill.457; Newcomb v. Cabell, 10 Bush, 460; Hayden v. Demets, 53 N. Y. 426.

of cotton may be evidenced by a delivery of the ginner's receipts. (op) The intent to deliver must accompany the act, whatever that is, to give it the legal effect of delivery. (oq) Marking timber on a wharf, or goods in a warehouse, operate a delivery; goods bought in a shop, weighed or measured, and separated, and left by the owner until called for, are sufficiently delivered; (p)1 and horses bought at livery, and remaining at livery with the seller at his request, are said to be delivered to the buyer. (q) This last case has been questioned, but it seems to come under the general analogy, for the purchaser incurs at once a liability for their keeping. It is true, however, that later cases apply a stricter rule than formerly to constructive delivery; and the presumption of delivery is not to be favored, because it deprives the seller of his lien without payment. (r) But if goods are sent, even under a contract of sale, to be applied by the receiver (who was to be the buyer) to a particular purpose (as to take up certain bills of exchange (to which purpose they were not and could not be applied, the sender does not lose his property in them by the delivery, but may recover them back. (s) And if property be awarded to one by arbitrators, at a certain price, the tender of the price does not pass the property, unless the other party accept the price. (t)

(op) Waller v. Parker, 5 Cold. 476.

(07) Susquehanna, etc Co. v. Finney, 58 Penn. St 200

(p) So selecting and marking sheep, then in the possession of one who was requested by the vendee to retain possession of them for him, is a sufficient delivery. Barney v. Brown, 2 Vt 374. For other instances of constructive delivery, see Hatch v. Bayley, 12 Cash. 27; and Hatch v. Lincoln, 12"Cush. 31

(q) Elmore v. Stone, 1 Taunt. 458. But see the subsequent case of Carter v. Toussaint, 5 B. & Ald. 855. In that case a horse was sold by verbal contract, but no time was fixed for the payment of the price. The horse was to remain with the vendors for twenty days without any charge to the vendee. At the expiration of that time, the horse was sent to grass, by the direction of the vendee, and by his desire entered as the horse of one of the vendors. Upon these facts the courts held that there was no acceptance of the horse by the vendee within the statute of frauds. Although Elmore v. Stone has been much doubted, it seems not to have been expressly overruled. See Smith v. Surman, 9 B. & C. 570, Bayley, J.

(r) Dole v, Stimpson, 21 Pick 884. See alse Tempest v. Fitzgerald, 3 B. & Ald. 680; Baldey v. Parker. 2 B. & C.. 37. But these cases arose under the statute of frauds, and turned upon what was a sufficient acceptance within that act. Put there may be, perhaps, a delivery good at common law, which would not amount to an acceptance within the statute of frauds.

1 That hauling certain lumber, after the buyer's inspector has passed it, to a wharf ready for shipment " on rail of vessel," passes the title, see Whitcomb v. Whitney, 24 Mich. 486. A bill of sale of a horse, continued to be kept in the seller's stable, is insufficient against his creditors. Dempsey v. Gardner, 127 Mass. 381. An accepted offer to buy a piano, when finished, the making a hill of sale of it and payment of the price at a subsequent day, is enough for a jury to find a delivery and passage of title against a subsequent purchaser. Thorndike v. Bath, 114 Mass, 116. A written transfer and delivery of a stock certificate to a bona fide purchaser is valid against the seller's attaching creditor Boston Music Hall Ass. v. Cory, 129 Mass. 435. If the thing sold is in a third person's hands, notice to him is a delivery against a subsequent attaching creditor. Dempsey v. Gardner, 127 Mass. 381, 383; Russell v O'Brien, 127 Mass 349; Puckett v. Reed,'31 Ark. 131; Cofield v. Clark, 2 Col 101 A survey of logs by a mutually agreed on person, and putting on them the purchaser's mark, is sufficient delivery even against subsequent purchasers, although the vendor was bound to deliver the logs farther down the stream. Bethel, etc. Co. v. Brown, 57 Me. 9. See Thorndike v. Bath, 114 Mass 116. - K.