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After a continuance, the opinion of the Court was drawn up by

Wjeston C. J.

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.

*306In Searle et al. v. Keeves, 2 Esp. R. 598, when the warehouse man received the order, he became the depositary for the vendee, and diere was thus a change of possession. In Chaplin v. Rogers, 1 East, 192, the vendee had sold part of the hay, and the second purchaser had actually taken it away. In Elmore v. Stone, 1 Taunt. 458, the plaintiff, the vendor of the horses, was a livery stable keeper, and the defendant had ordered them to be there kept at livery for him. Bayley J., in Howe v. Palmer, 3 B. & Ald. 321, says, that case goes as far as any one should, and that the Court ought not to go one step beyond it, and that it turned upon the fact, that expense was incurred by direction of the buyer.

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 *307sale was there made of a quantity of logs. The vendor directed an agent to deliver them to the plaintiff. The agent showed them to him, they being then rafted and lying in a boom. This was held to be a sufficient delivery y the plaintiff doing as others did with similar property, suffering it to remain in the boom, until he should have occasion to use it. The boom was a common place of security, which the plaintiff was as much entitled to use as the vendor; and there was all the change of possession, of which the property was susceptible.

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, -

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