Deliveby

8 Transfer of the body or substance; surrender of physical possession or control; tradition. Opposed, non-delivery. To "deliver" is to give or transfer anything to another person. cases, Bradley, J.; Co-^-ress & Empu-e Spring Co.!). Knowlton, 103 V. S. 5i4-jO (1880), cases. Woods, J. See also 116 U. S. 685-86: 48 Ark. 491; 101 Mass. 160; 107 id. 259- 25 Pa. 441; 79 id. 242; 25 Barb. 341; lOInd.386; 59 Iowa, 190; 6 Col. 14; 58 N. H. a49; 17 Nev. 177; 70 Va. 423; 2 Story, Contr. § 617; 3 Pars. Contr. 127, 484; 2 Greenl. Ev. § 111. I Setter v. Alvey, 15 Kan. 160 (1875), Brewer, J. ' See 55 Barb. 102; 22 Mich. 42T; 11 Mass. 376; 4 N. H. 455; 3N. y. 230. 8 Clark V. United States, 102 U. S. 331 (1860). * See White v. Franklin Bank, 22 Pick. 181-90 (1839), cases; Daniels v. Tearney, 103 U. S. 420 (1880), As to counter-claims, 20 Cent. Law J. 303-65(1885), cases. » See 3 Bl. Com. 363; 2 Kent, 241. 6 Owing's Case, 1 Bland's Ch. 386 (1828). See 1 Redf. ^'"ne Trs of Clark v. Ellis, 9 Oreg. 129, 141 (1881), Lord, A law against "selling or delivering intoxicating liquor to a minor " was held not to include a delivery to a minor for his father. 1 See Liquor. In the sense of release from confinement, used in " jail-deliveiy." See Jail. *' Delivery," used alone, is of personal property; of letters, notices, telegrams, qQ. -u.; ©T negotiable instruments, q. u; of sealed iiistpuments; of opinions, charges, verdicts, qq. v. 1. In the law as to gifts, sales, and transportation of personailty, delivery is absolute or conditional, actual or constructive, and symbolical. Absolute delivery. A transfer without any qualification, expressed or implied. Conditional delivery. A ti-ansfer accompanied by one or more conditions which must be fulfilled before the general property vests in the possessor. A conditional sale may become an absolute s^e by an unconditional deliveiT* of the goods, the title then passing to the purchaser. To constitute a conditional delivery it is not necessary that the seller declare the conditions in express terms. It is sufficient if the intent of the parties, that the delivery is conditional, can be inferred from their acts and the circumstances of the case,^ Actual delivery. Manual or corporal transfer, made in fact or reality. Constructive delivery. A transfer which while not in reality made is yet viewed in law as as good as made.. " Constructive delivery " is a general term, comprehending all acts which, although not truly conferring a real possession of the thing sold on the vendee, have been held co Tistructione juris equivalent to acts of real delivery.^ Symtoolic. or symbolical delivery. Handing over one thing as evidence of parting with ownership in another or other things. Delivery is frequently symbolical; as, delivery of the key to a room containing goods, by marking timber on a wharf or goods in a warehouse, or by separating, measuring, or weighing them; or otherwise constructive, as by delivery of part for the whole; » or by delivery of a bill of lading or of a bill of sale. See Gift, 1. As between vendor and vendee delivery is not necessary to complete a sale of personalty, especially where impracticable;* but as against a third person 'State V. Mc Mahou, 53 Conni 415 (1886); Commonwealth V. Latin ville, 180 Mass. 386 (1876). ' Fishback v. Van Dusen, 33 Minn. 116-48 (1885), cases, Mitchell, J. " Bolin V. Huf En^le, 1 Eawle, *20 (1828). * 1 Bouvier, 602, cases; 89 HI. 218; 71 N. T. 293; 8 Bl. Cora. 313-16; 1 Pars. Gontr. 530; 8 Kent, 608. possession retained by the vendor is evidence of fraud — conclusive, by some authorities, by others, rebuttable. Symbolical is a substitute for actual delivery, when the latter is impraoticablej and leaves the real delivery to be made afterward. Thus, the delivery of a certificate of stock with a power of attorney in blai^ for making a transfer upon the proper books operates as a symbolical delivery of the stock itself, until the real delivery can be perfected.' To constitute a delivery to a common carrier the latter must accept the goods as a carrier and assume exclusive control over them.^ What amounts to a delivery to a carrier may sometimes be a question' of fact for a jury; ordinarily, a delivery at his -wharf, freight or warehouse, brought to the notice of his servant, would be so considered. A deliveiy at a wharf may be of itself an incomplete act, to be explained by what precedes or follows.' A common carrier by water must at least give notice to a consignee that the vessel has arrived or that the property has been landed.* Proof of the unexplained non-delivery of property by a bailee upon demand makes a prima facie case of negligence, and, in the absence of evidence excusing the non-delivery, presents a question of fact as to actual negligence for the consideration of a jury.* Property in a situation to be delivered to the consignee on demand may be said to be "awaiting delivery; " property on its way to a distant point to be taken thence by a connecting carrier, to be "awaiting transportation." " Misdelivery. A delivery by a common carrier at such place or time as is not intended by the contract of carriage. Opposed, a good, sufficient, or legal delivery. A misdelivery by a carrier is equivalent to a conversion.* See Accept, 1; Bailment; Carrier; Place, Of delivery; Possession, lY'audulent; Sale. As to collections on delivery, see Collection. » Delivery bond. An obligation for the return of goods, or the payment of their value, taken into the possession of the law but now to be restored to the defendant; as, in seizures under revenue laws.* 3. Section 3893, Rev. St., is designed to 1 Wmslow V. Fletcher, 63 Conn. 398-99 (1886); Cooke V. Hallett, 119 Mass. 148 (1875). = Eeed V. Philadelphia, &c. E. Co., 3 Housl. S08 (1866); O'Eannonu. Southern Express Co., 51 Ala. 484 (1874). « Hobart v. Littlefield, 13 E. L 348 (1881), cases; Hallgarten v. Oldham, 135 Mass. 3-18 (1883), cases. ' Ostrander v. Brown, 16 Johns. 43 (1818); 3 N. T. 822; 11 F. E. 284. » Confield v. Baltimore, &g. E. Co., 93 N. Y. 638 (1883), " Michigan Central E. Co. v. Mineral Springs Manuf. Co., 16 Wall. 387 (1873), cases. otect letters, (postal-cards, and packets), Qt by mail, from embezzlement, and from terference, with the improper designs erein enumerated, until they reach their istination by actual delivery to th« persons ititled to receive them.' 3. As to the delivery of telegrams, see