majority">Daggett, J.

There appeal's to have been much discussion, at the circuit, of points and principles, which, in the light in which I view the case, are not important to a right decision of it. It was there decided, that the defendant had lost his lien in this property, by his attempted attachment of it, thereby voluntarily resorting to a new remedy. Be that point as it may, the plaintiffs are bound, by the clear principles of law, to prove property in themselves, or they cannot recover. This, in my opinion, they have not done.

The proof consists entirely of a bill of sale or assignment of it, dated the 3rd of April, 1828; there never having been any actual possession of it in the plaintiffs. This bill of sale is very *495short, and not of doubtful import. It declares, that William Harrington, who then was agreed to be the general owner, did sell to the plaintiffs the hat bodies in question, then in the possession of Alfred Pennoyer and others, with authority to receive the same, “ they paying to said Pennoyer whatever balance is justly due to him from William Harrington for his labour expended upon said bodies, so far as he has a lien on said bodies, or a part thereof, for said labour.” Of this assignment the plaintiffs gave notice to Pennoyer, on the 8th of the same April; and on the 11th of October thereafter, the property being then in the possession of Pennoyer, the plaintiffs tendered to him ninety-five dollars in satisfaction of his lien, and demanded the property, which he refused to deliver. It was not pretended, that this sum was equal to the lien, which Pennoyer had on the property, on the 3rd of April, the date of the assignment or bill of sale.

On the 8th of April, and after the plaintiffs gave notice to Pennoyer of the assignment, the property was attached, by the defendant, as an indifferent person, to whom the writ was specially directed, and taken into his possession, upon a process against Harrington, the vendor, in favour of Pennoyer. Judgment was recovered against Harrington, on that process; and the property was taken, by an execution, which issued on that judgment, and sold at the post. While the defendant was thus in possession of the property, this suit is instituted. It is now said, that this attachment, by which the property was taken, was void. Be it so; still the question recurs, have the plaintiffs shewn any right to it by virtue of the assignment? They insist, that their right became absolute,upon the execution of the instrument; that the word sell imports an unconditional transfer of the property; and that draws after it a constructive possession. I think otherwise. “They paying to Pennoyer his balance,” if not a condition precedent, certainly imports a concurrent act to be done by the plaintiffs, or, at least, an attempt to pay that balance, before any right could vest in them. The word paying, according to the late Chief Justice Swift, in the case of Wheeler v. Walker, 2 Conn. Rep. 196. 199. clearly imports a condition. In the same case, says the present Chief Justice: “The words which constitute a condition, may be various. In particular words there is no magic: their operation depends on the sense they carry.” The same doctrine is recognized in the case of Judd & al. v. Bushnell & al. 7 Conn. Rep. 205.

*496The parties to this contract might have agreed, that the property should be transferred immediately, and the vendor might have accepted the promise of the plaintiffs to pay the debt due to Pennoyer; but the contract made was different; and the court, in view of it, can only say, that here could be no transfer without payment or tender of the balance due to Pennoyer; and that, in the absence of all proof of such payment or tender, no title has been acquired by the plaintiffs.

Therefore, let there be a new trial.

Williams and Bissell, Js. were of the same opinion.Hosmer, Ch, J. dissented.Peters, J. was absent.

New trial to be granted.

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