(e) McConike v. N. Y. & E. R. R. Co., 20 N. Y. 495. See post, chapter on Liens.

(f) Tarling v. Baxter, 6B.&C. 360; Gillet v. Hill, 2 Cr. & M. 535; Zagury v. Furuell, 2 Camp. 240; Wallace v. Breeds, 13 East, 522; Busk v Davis, 2 M. & Sel. 397; Shepley v. Davis, 5 Taunt. 617; Rhodes v. Thuaites, 6 B. & C. 388; Alexander v. Gardner, 1 Bing. N. C. 676. But where the thing to be done by the vendor is but trifling, or is but a mathematical computation, this rule will not apply. Thus, where there was a sale of certain trees, at a fixed price per cubic foot, and all the trees had been marked, and the cubical contents of each tree ascertained, it was held, that the property passed to the purchaser, although the sum total of the cubical contents had not been ascertained. Tansley v. Turner, 2 Bing. N. C. 151; s. c. 2 Scott, 238; and see Cunningham v. Ashbrook, 20 Mo. 553 The general principle stated in the text is recognized in the following American cases: Dixon v. Myers, 7 Gratt. 240; Ward v. Shaw, 7 Wend. 404; McDonald v. Hewett, 15 Johns. 349; Barrett v. God-dard, 3 Mason, 112; Rapelye v. Mackie, 6 Cowen, 250; Russell v. Nicoll, 3 Wend. 112; Outwater v. Dodge, 7 Cowen, 85; Stevens v. Eno, 10 Barb. 95; Damon v. Osborne, 1 Pick. 476; Macomber v. Barker, 13 id. 175; Houdlette v Tallman, 14 Me. 400; Cushman v. Holyoke, 34 id.

1 Subject, however, to the seller's lien until the delivery is absolute. Keeler v. Goodwin, 111 Mass. 490. Usage makes the possession of warehouse receipts of grain equivalent to its possession. Broadwell v Howard, 77 Ill. 305. See Keeler v. Goodwin, 111 Mass. 490, Bailey v. Bensley, 87 Ill. 556. - K.

or a part of * the price be paid, the sale is not complete under these circumstances, and if it finally fail, the money paid may be recovered back. (g) But if on a sale of goods, anything remains to be done by the buyer, and it nevertheless appears by the terms of the contract that the parties intend that the property should pass at once by the bargain from the seller to the buyer, it will so pass. (gg) Upon a sale of goods in bond, the property passes to the purchaser, upon delivery to a carrier selected by him (although they remain subject to lien for duties, and to the custody of the customs officers), during their overland transit to the port of exportation and delay there until authority to pass them is received; and although the vendor volunteers to take the necessary steps for obtaining the authority. (h)

An agreement to sell is a different thing from a sale, and therefore no mere promise to sell hereafter amounts to a present sale: so, an acceptance of a specific order for certain chattels is not itself a sale of those chattels, either to the drawer or to the party in whose favor the order is drawn. (i) And it is always a question of fact for the jury, whether a sale has been completed or not. (j) The frequent importance of this question arises from the rule, which we repeat, that if a sale be complete, the property in the thing sold passes to the buyer; and if the sale is not complete, it remains with the original owner.1

289, Stone v Peacock, 35 id. 385; Golder v. Ogden, 15 Penn. St. 528; Lester v. McDowell, 18 Penn. St. 91; Nesbit v. Burry, 25 Penn. St. 208; Riddle v. Var-num, 20 Pick. 280; Davis v. Hill, 3 N H. 382; Messer v. Woodman, 2 Foster (N. H.) 172; Warren v. Buckminster, 4 Foster (N. H.), 337; Crawford v. Smith", 7 Dana, 61. - But it is held, that if the parties intended that the sale should he complete before the article sold is weighed or measured, the property will pass before this is done. Riddle v. Var-num, 20 Pick. 280. See also Butterworth v McKinly, 11 Humph. 206; Waldron v. Chase, 37 Me. 414; Moody v Brown, 34 id. 107; Olyphant v. Baker, 5 Denio, 379 , Dennis v. Alexander, 3 Barr, 50; Crofoot v. Bennett, 2 Comst. 258; Brewer v. Salisbury, 9 Barb. 511; Cushman v Holy-oke, id. 289. But see Waldo v. Belcher, 11 Ired L. 609.

(g) Nesbit v. Burry, 25 Penn. St. 208; Joyce v Adams, 4 Seld. 291.

(gg) Turley v. Pates, 2 Hurl. & Colt. 200. Ford v. Chambers, 28 Cal. 13; Fitch v. Burk, 38 Vt. 683; Young v Matthews, L. K. 2 C. P. 127; Cummings v. Griggs, 2 Duvall, 87; Burr v. Williams, 23 Ark. 244.

(h) Waldron v. Romain, 22 B. V. 368; Martineau v. Hitching, L. R. 7 Q. B 436; Burrows v. Whitaker, 71 N. Y. 291; Hurff v. Hires, 46 N. .J L. 581; Carpenter v, Graham, 42 Mich. 191; or if something is to be dune by the vendor but at the vendee's direction and for his convenience. Whitcombr. Whitney, 24 Mich 486.

(i) Burrall v. Jacob, 1 Barb 165.

(j) De Kidder v McKnight, 13 Johns 294; Marble v. Moore, 102 Mass. 443; Kelsea v. Haines, 41 N. H. 246, 253; Dyer v Libby, 61 Me. 45.

1 Lester v. East, 49 Ind. 5C8, 592; The Elgee Cotton Cases, 22 Wallace, 180; Leigh v Mobile, etc. R. Co. 58 Ala. 165; Cardinell v. Bennett, 52 CaL 476; Olney v. Howe, 89 Ill.556. Whether, upon an agreement to sell, the title passes, depends upon the intention of the parties. Bethel, etc. Co. v. Brown, 57 Me. 9, 18; Prescott v. Locke, 51 N. H. 94, 101; Russell v. Carriugton, 42 N. Y. 118; Fitch v. Burk, 38 Vt

We are aware of no difference between the Roman civil *and the common law, in regard to any part of the law of contracts, greater or more definite in principle and theory than that which relates to this subject. But in practice the result was not so different. By the Roman law, the sale without delivery did not pass the property. It gave to the buyer a jus ad rem, but not a jus in re until possession. Leaving the property in the hands of the seller, it created two obligations, - one on the part of the buyer to pay the price, and, for this debt, the thing sold was a pignus in the hands of the seller; the other on the part of the seller to deliver the thing so pledged on payment of the debt. But if the pledge perished without the fault of the seller, he could not be called on to return the pledge, but might still call on the buyer to pay his debt, - that is, the price. (k) In Louisiana, it is held, that if by the terms announced at a public sale, the purchaser has a certain time to remove the goods, during the whole of that time they are at the risk of the seller. (kk)