
    The President, Directors, and Company, of the Portland Bank versus Benjamin Stacey and William Mansfield.
    A bona fide conveyance by deed, of a vessel and cargo abroad at the time, is valid against creditors, provided the vendee takes possession thereof without delay upon the return of the vessel.
    There is no difference m effect between the grand bill of sale used in England, and the bills of sale used in this country for the conveyance of vessels.
    Replevin of the schooner Ann and appurtenances; also of one hundred and thirty-five bales of cotton, fifty-nine tierces and twenty-two half-tierces of rice.
    The defendants pleaded severally the general issue of non cepit as to the schooner, which was joined by the plaintiff; and as to the residue of the goods, they plead, in bar of the action, that the property thereof was in Joseph M'Lellan and Hugh M’Lellan, and they justify the taking, as deputy sheriffs, under several writs of attachment against the said Joseph and Hugh, in favor of sundry of their creditors. The plaintiffs reply property in themselves, on which issue is also joined.
    Upon trial of the several issues at the last April term at Ipswich, before the Chief Justice, a verdict was returned for [ * 662 ] * the plaintiffs, and nominal damages assessed, subject to the opinion of the Court on the following facts, viz.: — “ That Joseph M’Lellan and Hugh M’Lellan, mentioned in the pleadings, were, on the 26th of December, 1807, holden and in law bound to pay the plaintiffs the sum of 80,334 dollars 50 cents : that to secure the payment of that sum to the plaintiffs, the said Joseph and Hugh, by their bill of sale under their hands and seals of that date, bargained and sold, among other property, the schooner Ann, mentioned in the writ, with her appurtenances, and also the cargo, if any, which might be shipped on board the said schooner, for and on account of the said Joseph and Hugh, to consist of cotton and rice, which said deed was on condition to secure to the plaintiffs the payment of the money due to them as aforesaid, and was in due form of law ; that when the said deed was made, the said schooner was in Charleston, South Carolina, having two days before taken on board, for and on account of the said Joseph and Hugh, a cargo consisting of the cotton and rice mentioned in the writ; that the said schooner arrived at Gloucester, in the county of Essex, on the 4th of January, 1808, when her said cargo was attached, in due form of law, by the defendants, at the suits of the attaching creditors named in the pleadings, who are boná fide creditors of the said Joseph and Hugh, having no knowledge of the conveyance aforesaid; that the plaintiffs, as soon as they had knowledge of the arrival of the said schooner and cargo, took possession of the same without any negligence on their part, viz., on the 18th of January, 1808; and that no other conveyance was executed, instrument made, or act done, by the said Joseph and Hugh, to transfer the property of the said schooner and cargo to the plaintiffs, excepting the executing the bill of sale aforesaid.”
    If, on these facts, the Court should be of opinion that the property of the said cotton and rice was, when the writ of replevin was executed, in the plaintiffs, then it was agreed that the verdict should stand, and judgment be rendered thereupon ; otherwise the verdict as to the said issues should be set aside, and a verdict entered fat the defendants on the said issues; with one dollar damages.
   The cause was submitted without argument, and the opinion of the Court was delivered by

The Solicitor-General and Prescott for the plaintiffs.

Dexter and Jackson for the defendants.

* Parsons, C. J.

On the trial of the issues of the [ * 663 ] question submitted to the jury was, whether the chattels replevied were the property of the plaintiffs. A verdict being found by consent of the parties for the plaintiffs, subject to the opinion of the Court on a case stated, we have examined the facts agreed upon, and, upon consideration, are satisfied that the verdict is right. The property being in Joseph and Hugh M’LeUan, they mortgaged it by a deed in due form, duly executed, and for a valuable consideration, to the plaintiffs.

But it is objected that the goods, when the deed was executed, were in South Carolina, and that the plaintiffs did not, in fact, take possession of them, until after they had been attached at the suit of certain creditors of the M’Lellans.

Personal property passes by grant on'the execution of the deed, and at common law an actual delivery is not necessary to the validity of the grant. By the English statute of 21 Jac. c. 19, which forms a part of their bankrupt system, a grant, where the possession is not delivered, but remains in the grantor, will not protect the property against the assignee of the grantor, if he become bankrupt. But the English bankrupt laws were never in force in this state. By the construction of that statute, a sale of a ship and cargo abroad is good, although possession be not immediately deliv ered, provided the evidence of the title be delivered, and the vendee take possession as soon as the property is within his reach. In this state, the neglect of delivery may bé a circumstance from which a jury may, with other circumstances, presume fraud; but the sale is not thereby void. Now, the schooner, in this case, arrived at Gloucester on the 4th of January, 1808, and it is agreed that the plaintiffs took possession of her and her cargo as soon as they had knowledge of her arrival. Here was, therefore, no delay in the plaintiffs, nor any circumstance, from which it might be inferred that the sale was not bona fide. The mortgage must be deemed to have legally vested the property in the plaintiffs, and judgment is to be rendered on the verdict.

* Note. — After the Chief Justice had delivered the [ * 664 ] opinion of the Court as above, he observed that one reason, which induced him to save this case, was, that it might be ascertained whether there was any distinction between what is commonly called the grand bill of sale in England, which is necessary to pass ships at sea, and the bills of sale for vessels used in this country. He said he knew no distinction, and believed there was none. He thought, on the whole, that the case was so plain, as t< have been hardly worth reserving.  