
    Brewer & al. vs. Smith.
    Where one contracted to bum a kiln of bricks, for which he was to receive ten thousand of them when burnt, and he performed his part of the contract; — it was held that he had no vested interest in the bricks, which his creditor could attach, till actual or constructive delivery.
    
      Trespass against the defendant, a deputy sheriff, for taking and carrying away 10,000 bricks from the plaintiffs’ kiln. At the trial of this cause in the Court below, before Whitman C. J., the defendant, in a brief statement, justified the taking of the bricks as the property of one Thornes, against whom he had in his hands a writ of attachment; — and read in evidence an agreement of the following tenor. — “ Articles of agreement between D. & D. u Brewer, of, &c. and Benjamin Thornes, of, &c. witnesseth— “ viz. — I the said Benjamin Thornes will take said Brewers’ kiln “ of brick situated in Westbrook, in its present situation, and put “ it in the best orderto burn, put fire to it, and burn the brick in “ the best manner, said Brewers finding what more wood that is u necessary than is now alongside said kiln. And we the said u Brewers on our part do agree with said Thornes, if he the said <£ Thornes does burn said brick in the manner aforesaid, we will “ deliver the said Thornes, at the kiln, after they are burnt, ten “ thousand good hard-burnt bricks, suitable for the outside of a “ brick store or house, which is to be in full for the said Thornes’ “ services for burning said brick”. — Which was signed by the parties.
    The defendant then proved that previous to the time of the attachment, the bricks had been fully burnt and finished ; — that he gave notice to the plaintiffs that he was about to attach the bricks belonging to Thornes, and requested them to be present and set out his part, w'hich they declined to do, and forbid him to do it; — and that in removing the bricks he did the least possible damage, carefully replacing the other bricks.
    Upon this evidence the Judge was of opinion that Thornes had no vested interest in the bricks, attachable by law; and directed a verdict for the plaintiffs. To which the defendant excepted.
    
      Adams, for the defendant.
    In this case the defendant represents the vendee, and therefore the law as between vender and vendee must govern the action. Now it is clear that where nothing remains to be done by the purchaser of goods, the property vests in him. Montagu on Lien p. 18. 1 Dane’s Abr. 234. But here Thornes had performed his
    part of the contract, and was entitled to take to himself his portion of the bricks. The goods being cumbrous, no manucaption or actual delivery was necessary. Jewett v. Warren 12 Mass. 300. Nor is it necessary many case, between vendor andvendee. Lamphearev. Sumner 17 Mass. 110. Meacher v. Wilson 1 Gal. 419. Chapman v. Rogers 1 East 192.
    
    The objection that the bricks were mingled in common with the plaintiffs’ cannot avail. Thornes was entitled to any ten thousand in the kiln. Whitehouse v. Frost 12 East 614. And if the plaintiffs can recover in this action, yet they must instantly deliver over the bricks to Thornes, and the defendant may instantly seize them.
    
      Hopkins, on the other side,
    relied on the want of actual delivery, whichhe contended was necessary to constitute a vested interest in the bricks, in favor of the debtor. Until that was done, he had only a right of action against the plaintiffs, who might have been summoned as his trustees. This, in truth, was the ..only remedy suited to the case; as the plaintiffs then could avail themselves of any payments they had made to Thornes for his services in burning the bricks, of which his creditors, by attaching the bricks, would seek to deprive them.
   Weston J.

delivered the opinion of the Court.

The validity of the defence in this case will depend upon the question whether Benjamin Thornes, at the time of the attach>ment of the bricks as his property, had therein a vested interest. The kiln originally belonged to the plaintiffs, who also furnished the wood to burn it. Thornes was to burn the.bricks, for which service the plaintiffs agreed to deliver him ten thousand of the same bricks, after they should be burnt. Thornes performed the service ; but it,does not appear that the bricks have been delivered to him, as hy the plaintiffs’ contract they engaged to do ; nor did they assent to the attachment, but forbade it. Until ■delivery, actual or constructive, the claim of Thornes rested in' contract, for the breach of which his remedy was by action. There is no evidence in the case from which a constructive delivery can.be inferred. The plaintiffs have done no act, except that of entering into the contract. It was not agreed that upon the performance of the service, Thornes was to take thebricks;— but they were to b.e delivered to him by the plaintiffs.

' If, after the bricks were burnt, Thornes had demanded his ten thousand, and had been told by the plaintiffs to take them ; or if any thing’had been said or done by the plaintiffs, expressive of their assent that he should take them ; that might have been sufficient, in an article of this description, to have vested the property in Thornes, so as to have rendered it liable to be taken at the suit of his creditor. But nothing of this kind appears.

We have examined the cases cited by the counsel for the ■defendant, and find them to have been cases of sale, supported by a diversity of propf as to delivery, actual or constructive. But this is not a case of sale ; but of a contract to deliver, unattended with the circumstances from which a delivery can be presumed. The exceptions to the opinion of the Court below >are overruled, and the

Judgment affirmed.  