
    Elisha Parks versus Joseph Hall.
    Where any fact relating to a process is drawn in question, which, according to the forms of proceedings, cannot appear on inspection of the record, it is to be deter mined by the jury 3 as, whether a writ of attachment, in an action not entered, ¿vas ever returned.
    Whether an assignment of goods for securing a debt, in which it is agreed that the assignee shall sell them and pay over the surplus of the proceeds, after deducting his demand, to the assignor, can be considered as a mortgage, quaere.
    
    Such assignee having been paid, partly in money and partly in securities, ag fed verbally to give up all the goods assigned, and actually delivered all except seme wine and vinegar. The wine was in a loft which the assignor had leased to the assignee, and the assigneepromised to come and give up the lease and key, but he having neglected to do it, the assignor took possession of the loft and of the wine without his knowledge, and before the lease and key were delivered up, part of the securities failed. It was held, that here was a resale, and that the assignee had no lien on the wine and vinegar, because there was a constructive delivery of all the goods, and also, as to the wine, because the actual possession taken of it by the assignor was authorized by the agreement.
    Trespass for taking a quantity of wine and of vinegar. The defendant pleaded the general issue, and filed a brief statement, setting forth that he was the sheriff of Suffolk, and that the articles in question were the property of William Plympton and were taken by John S. Williams, a deputy of the defendant, by virtue of a writ of attachment against Plympton in favor of one Fulham.
    At the trial, before Parker C. J., the writ referred to was offered in evidence by the defendant, but was objected to, on the ground that it had not been returned into the clerk’s office according to law. The clerk testified, that writs which had been served in actions that were not entered, were placed upon a file to which counsel and attorneys had access, and that writs so filed were not unfrequently taken out of the office. Under these circumstances it was left to the jury to determine, upon evidence produced on both sides, whether the writ in question had ever been returned.
    It appeared by the testimony of Plympton, that the property attached had been assigned by him to the plaintiff, to secure the plaintiff on large advances made by him to Plympton ; that the wine, when assigned, was in a loft which was locked and the key of it kept by the plaintiff, and that a lease of the loft (which was in the store occupied by Plympton) and of the yard where the vinegar was kept, was made by Plympton to the plaintiff, so that Plympton had no control over the property ; that it was afterwards agreed by the plaintiff, that upon the payment of 8000 dollars and the delivery to him of a note which Plympton held against one Jones, indorsed by one Homer, for 685 dollars, a draft upon Baltimore for 750, also indorsed by Homer, and certain lottery tickets estimated at 800, which together were nominally sufficient to pay the debt due to the plaintiff, all the property assigned, including the wine and vinegar, should be given up. The money was paid and the securities mentioned were delivered to the plaintiff on a Saturday forenoon. Plympton, upon being asked why the lease of the loft &c. and the key were not delivered to him, answered that he had other business to attend to at the time, and that the plaintiff told him he would come down in the afternoon and give him up the lease and the key. Some days before this transaction Plympton had got into the loft and opened the door, and on the evening of the Saturday just mentioned 1000 bottles of wine were carried into the loft by his direction. The plaintiff did not know of, nor consent to the opening of the loft, he having the key and Plympton having before always borrowed it when he had occasion to enter the loft. On Monday following the officer got into the loft and made the attachment; which being made known to the plaintiff, he had a lock put on the door and fastened it. The officer finding the door locked, burst it open and took charge of the wine.
    The jury were instructed, on this part of the case, that as the assignment was not intended as an absolute transfer, but as security for money advanced, if they were satisfied from the evidence, that the note, draft and tickets were received at the time in payment of the balance due to the plaintiff, or as security instead of the wines &c., the property in these articles revested unconditionally in Plympton, without any formal transfer in writing, or giving up or cancelling of the papers, or formal delivery of the property to Plympton; the assignment being in the nature of a mortgage, which is discharged at law, as well as in equity, upon the performance °f the condition.
    It was contended by the plaintiff’s counsel, that as Plympton had failed on Monday, and in consequence of it both Jones and Homer had also failed, the plaintiff had a right to retain possession of the goods ; but in this he was overruled, it not being proved that there was any reserve or condition at the time when the plaintiff received the papers and so was supposed to have abandoned his security upon the wines.
    A verdict was found for the defendant, and the plaintiff moved for a new trial.
    
      Prescott and F. Dexter, in support of the motion, said that if the writ was not returned, the defendant was a trespasser ab initio ; Oystead v. Shed, 12 Mass. R. 511 ; Hoe's case, 5 Co. 90 ; Freeman v. Blewitt, 1 Salk. 409 ; Cheasley v. Barnes, 10 East, 82 ; and that whether it was duly returned or not, was to be ascertained by the record. The Court, by inspection of the files in the clerk’s office, might determine the question. If it were referred to the jury, they would have to decide, first, whether the writ was proper evidence to be submitted to them, and then, what was proved by it.
    The intent of the assignment is to be gathered from the deed itself. It is absolute in its form, and its being intended for security does not make it conditional or defeasible. It was a sale in trust only. Such a conveyance of real estate would not be a mortgage-; it might make the grantee a trustee. The plaintiff had a right to sell the goods and get his commissions on the sale, and Plympton could not have obliged him to give up the goods by tendering him the amount of his debt and such commissions ; but if the plaintiff misconducted himself, he would be liable on his covenants.
    Whether the plaintiff sold the wine and vinegar to Plympton, or gave them in exchange for the securities, ought to have been determined by the jury ; but admitting that they revested in Plympton by a sale or exchange, yet the plaintiff had a right to retain them, on the ground, that the vendor has a lien on goods, if before delivery the vendee becomes insolvent, (Whitaker on Lien, 149 ; Brown on Sales, 12, 13, 436, et seq.; Mason v. Lickbarrow, 1 H. Bl. 363 ; Litt v. Cowley, 7 Taunt. 169,) or the security received in payment fails, except where the vendor expressly takes the risk of its failing ; Montague on Lien, 88, 89 ; Grant v. Mills, 2 Ves. & B. 306 ; Hughes v. Kearney, 1 Sch. & Lefr. 132; Owenson v. Morse, 7 T. R. 62 ; Puckford v. Maxwell, 6 T. R. 52. And the lien is not discharged by a payment of only part of the price ; Feise v. Wray, 3 East, 93 ; Hodgson v. Loy, 7 T. R. 441 ; Payne v. Shadbolt, 1 Campb. 427 ; nor by a posession obtained by the vendee by mistake or force. Litt v. Cowley, 7 Taunt. 169 ; Ex parte Walker and Woodbridge, Cooke’s Bankr. Law, c. 8, § 17.
    
      D. A. Simmons for the defendant.
    The opinion of the Court was delivered at an adjourned term in July, by
   Wilde J.

This is an action of trespass, vi etamts, against the sheriff, for a quantity of wine and of vinegar, taken by one of his deputies on a writ of attachment against one William Plympton ; so that the general question is, whether the wine and vinegar, at the time of the taking, were the goods and chattels of the plaintiff, or of Plympton."

A previous question, however, has been argued, which, although unimportant in the decision of this cause, seems to be deserving of some consideration, as it relates to the rules of practice. It was objected at the trial that the writ against Plympton was never returned into the clerk’s office, and the evidence as to this fact was submitted to the consideration of the jury ; which the plaintiff’s counsel contend was ii regular.

This objection would be well founded, if it were the duty of the clerk, according to our practice, to make record oi writs returned and not entered. But this not being required, and never having been the practice, the question as to the return could not have been decided by the record. Witnesses therefore were properly admitted, from the necessity of the case, to testify as to the fact, and the jury was the proper tribunal to decide upon the testimony of the witnesses. Where any fact relating to a process is drawn in question, which according to the forms of proceedings cannot appear on inspection of the record, it is to be determined by the jury. Thus, in actions against bail, if the defendants deny that they became bail, the pleadings in this State must conclude to the jury ; because the bail bond is not required to be returned by the sheriff or recorded. So in England, if the question is, whether an original writ were sued out, it must be tried by a jury ; because the writ is not recorded until a return be made thereto. Peter v. Stafford, Hob. 244. Or if the question be, whether a defendant appeared at a day certain, it is to be tried in the same manner, it not being requisite that the day of appearance should be entered upon the record. Hoe v. Marshall, Cro. Eliz. 131.

This point, however, as before remarked, is not material in this case ; for if the plaintiff had no property in the goods taken, he cannot maintain his action, however irregular the proceedings of the sheriff might have been. And on the other hand, if the property was in the plaintiff, the defendant could not justify the taking on a writ againstPlympton.

The plaintiff’s title is derived fromPlympton, by virtue of a bill of sale, in which he assigns and transfers to the plaintiff all his right and property in the goods in question, for the purpose of securing a debt due from him to the plaintiff for money advanced. It appears by the indenture of sale, that it contains no condition upon the performance of which the property was torevest in Plympton ; but it was agreed therein, that the goods should be sold by the assignee, and the surplus of the proceeds of sale, after deducting the plaintiff’s demand, should be paid over to Plympton. The question first to be considered is, whether this was an absolute sale, or an assignment by way of mortgage. 3If it was of the latter description the property would revest m the mortgager, on payment of the debt, without redelivery of the goods, or any resale, or the cancelling of the mortgage. I take this to be the rule of law, as well as of equity, in relation to a mortgage of goods and chattels. In respect to mortgages of real estate, after condition broken, the rule of law is different. In such case the legal estate will not revest in the mortgager, without the aid of a court of equity. But in this case, if the assignment can be treated as a mortgage, the property would have revested in the mortgager, even if it' were a mortgage of real estate. No time was limited for the payment of the debt, and in such case the debt is to be paid in a reasonable time. Now if the condition of a mortgage is strictly performed, the performance ipso factodischarges the mortgage, and the property immediately revests in the mortgager.

Whether the assignment in this case can in a court of law be treated as a mortgage, is a question of some doubt. I have, however, no doubt it would be so considered in a court of equity.Whenever it appears by the terms of the deed, that a conveyance seemingly absolute, was nevertheless intended as a security for a debt, it is always considered in a court of equity as a mortgage ; and I can perceive no good reason why it should not be viewed in the same light in a court of law. Patch onMortg. 9 ; Powell on Mortg. 14, 15.

But it is unnecessary at present to settle this point; because we are all of opinion, that the facts proved at the trial are sufficient to maintain the verdict on the ground of a resale of the goods, admitting the first sale to have been absolute. It appears that before the attachment, Plympton, being desirous to procure a relinquishment of the property assigned, paid to the plaintiff 8000 dollars and gave satisfactory security for the residue of the debt ; and that thereupon the plaintiff agreed to give up the property, and all the goods, except the wine and vinegar, were actually delivered to Plympton. This we consider as a good and valid resale of the property. Neither a bill of sale, nor a delivery, was necessary to complete the transfer and revest the property.

But the plaintiff’s counsel contend that he bad a lien on the property, his debt not being fully paid, and his security having partly failed. This will depend on the question, whether before the attachment there had been an actual or constructive delivery.

By the principles of the common law a vendor of goods has a lien upon them, so long as they remain in his possession and the vendee neglects to pay the price according to the conditions of sale. And if payment is, by agreement, postponed to a future day, and the vendee becomes insolvent, while the goods are yet in the hands of the vendor, or of a carrier or middle man employed to convey them to the vendee, the vendor may retain them or stop them in transitu until the price is paid. ***&Brown on Sales, 13, 14 ; Litt v. Cowley, 7 Taunt. 169.

The same principle applies in a case where security has been given and the security fails in the intermediate time between the sale and the delivery. But the right of lien depends on the possession ; and to maintain it a vendor must have the actual or constructive possession of the goods After they come into possession of the buyer, according the terms of the contract, the lien is extinguished ; and the goods cannot be reclaimed on the buyer’s becoming insolvent. It has been doubted whether a constructive delivery is sufficient to take away the vendor’s right of lien ; and perhaps it would be going too far to say that in every possible case a constructive delivery would have this operation. But generally it is immaterial whether the delivery is actual or constructive. In many cases, wherein it has been held that :he vendor’s right of lien or of stopping in transitu had been defeated, the delivery was constructive only. Brown on Sales, 450 ; Mills v. Ball, 2 Bos. & Pul. 461 ; Oppenheim v. Russell, 3 Bos. & Pul. 47 ; Stoveld v. Hughes, 14 East, 308 ; Lucas v. Dorrien, 7 Taunt. 278; Keyser v. Suse, 1 Gow, 58 ; Spear v. Travers, 4 Campb. 251 ; Slubey v. Heyward, 2 H. Bl. 504 ; Hammond v. Anderson, 1 New Rep. 69.

The only remaining question to be considered is, whether the facts proved show an actual or constructive possession in the plaintiff at the time of the attachment.

It appears, in the first place, that there had been an actual delivery of a part of the goods, and this on an entire contract. It is not, however, universally true, that the actual delivery of a part of the goods sold on an entire contract is equivalent to an actual delivery of the whole. The proposition must be laid down with some qualifications, depending on the terms of the contract and the intention..of the contracting parties. As for instance, if goods are sold by weight or measure, and a part is weighed or measured and delivered, and a part not, the property in the goods not weighed or measured still remains in the vendor ; Hanson v. Meyer, 6 East, 614 ; or if any thing remains to be done by the vendor before delivery, as to the part not delivered j* *or if a part is retained by the vendor until the price shall be paid ; or if the goods are to be paid for on delivery, and a part only is paid for and delivered. In all these cases the property in the part not delivered will not vest in the vendee. Rugg v Minett, 11 East, 210 ; Long on Sales, 152 ; Owenson v. Morse, 7 T. R. 64.

With these exceptions, and some few others perhaps, the general rule is, that the delivery of a part of goods sold on an entire contract is a virtual delivery of the whole, and vests in the vendee the entire property. The vendor’s right of lien for the price is governed by the same rule. The distinction made by the court, in the case of Slubey v. Heyward, is worthy of notice, as applicable to the case under consideration. That case turned on the legal effect of the partial delivery of a cargo of wheat ; and the court held that the vendor had no right to countermand the order of delivery, after the delivery was commenced, and that the delivery of part must be taken to be a delivery of the whole ; because, it is said, there appeared to be no intention, either previous to or at the time of the delivery, to separate part of the cargo from the rest. This case and the case of Hammond v. Anderson, 1 New Rep. 69, I consider directly in point. For in the present case it is not pretended that there was any agreement or understanding between the parties, that any part of the goods should not be delivered. On the contrary, Plympton testifies that the reason why he did not take possession of the loft at the time when the other goods were delivered, was because he had then other business to attend to. Besides, if it were necessary for Plympton, in order to terminate the plaintiff’s lien, to take possession of the loft, that also was done before the' attachment. The attachment was made on Monday, and the Saturday previous it was agreed that Plympton should have possession on that day. The plaintiff promised to bring or send the key to him, and on his failing to do it Plympton entered and took possession of the loft and deposited in it an additional quantity of wine. He was thus in the actual possession of the loft and of the wine. No demand of the key was necessary; it was the plaintiff’s duty to send it, and he must not be permitted to take advantage of his own wrong. I admit that an unau thorized act of possession would not avail; but Plympton had a right to enter, by the consent of the plaintiff,' and whether it was by means of the key or otherwise, is immaterial.

Upon the whole, it is impossible to say that the plaintiff had either the actual or constructive possession of the goods attached; consequently his right of lien fails, and the defendant is entitled to judgment.1

Judgment according to verdict. 
      
       S. P. Hinman v. Brees, 13 Johns. R. 529; Brier v. Woodbury, 1 Pick. 367; Sayer, 208. 301; Martin v. Thornton, 4 Esp. R. 180; ante 22, n. (3) ; 3 Stark. Ev. 1335.
     
      
       See Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 249; Peters v. Ballistier, 3 Pick. 495.
     
      
       2 Preston on Conveyancing, 200, 201;Legro v. Lord, 1 Fairfield, 161; Peabody v. Patten, post, 519; Ratcliff v. Davis,Yelv. 179, note (1).
     
      
      
        Conway v. Alexander, 7 Cranch, 218 ; Bolton v. Avery, 2 Root, 279 ; Wheeland v. Swarth, 1 Yeates, 179 ; Wilson v. Carver, 2 Hayw. 93; Roberts v. Cook, 1 Rand. 128 ; Robertson v. Campbell, 2 Call, 354 ; Thompson v. Davenport, 1 Wash. 125. It does not depend on the form of conveyance, whether an instrument is to be considered a mortgage or not. Hattier v. Etinaud, 2 Desaus. 570 ; Conway v. Alexander, ubi supra; Robertson v. Campbell, ubi supra
      
     
      
      
        Barrett v. Pritchard, 2 Pick. 515; Young v. Austin, 6 Pick. 280.
     
      
       Where goods are sold to be sent to a particular destination named by the vendee, the right of stoppage in transita continues in the vendor until they arrive at that place of destination. Coates v. Railton, 6 Barn. & Cressw. 422 ; Rowe v. Pickford, 8 Taunt. 83. Unless the vendee, by his own act, intercepts the delivery which would otherwise, in the ordinary course, be made at that place, and does any act equivalent to taking possession ; for in such case the transit would be terminated before the goods came to the place of destination. Foster v. Frampton, 6 Barn. & Cressw. 107; Mills v. Ball, 2 Bos. & Pull. 461; Chambre J. in Oppenheim v. Russell, 3 Bos. & Pull. 42; Rowley v. Bigelow, 12 Pick. 307; Allen v. Gripper, 2 Tyrwhitt’s Ex. R. 217; S. C. 2 Crompt. & Jerv. 218. See, however, Holst v. Pownal, 1 Esp. R. 242 ; Ashhurst J. in Lickbarrow v. Mason, 2 T. R. 63; Lawrence J. in Bohtlingk v. Inglis, 3 East, 398. Even after the goods have arrived at their place of destination, the right of stoppage continues until they have been taken possession of on be half of the consignee Naylor v. Dennie, 8 Pick. 198.
     
      
       For the mode of reconciling the apparently conflicting cases on this subject, see 2 Kent’s Com. (2d ed.) 545.
     
      
      
        Dixon v. Yates, 5 Barn. & Adol. 313 ; Simmonds v. Swift, 5 Barn. & Cressw. 857 Young v. Austin, 6 Pick. 280; Merrill v. Hunnewell, 13 Pick 213. But see Damon v. Osborn, 1 Pick. 476 ; Macomber v. Parker, 13 Pick. 175; Towne v. Bradstreet, argued in Essex, Nov. term, 1834.
     
      
       A printer employed to print certain numbers of an entire work, has a lien on the copies not delivered, not onjy for the amount due on them, but also for the balance due on those which have been delivered. Blake v. Nicholson, 3 Maule & Sel. 168.
     
      
       See also Sands v. Taylor, 5 Johns. R. 395; Smith v. Surnam, 9 Barn. & Cressw. 561; Howe v. Palmer, 3 Barn. & Ald. 321; Hanson v. Armitage, 5 Barn. & Ald. 559; Carter v. Toussaint, 5 Barn. & Ald. 855
     
      See Tarling v. Baxter, 6 Barn. & Cressw. 360.
     