Legg v. Willard

34 Mass. 140

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1835
• Status: Published

Opinion

Per Curiam.

It appears that there was no actual delivery of the goods in question, but at the time when the assignors executed the assignment, they made an actual delivery of such goods as were near their place of residence, in token of a delivery of the whole property embraced in the deed. This was clearly within the general rule, that a delivery of part of goods sold upon an entire contract, is a virtual delivery of the whole, and was sufficient to vest the property in the assignee. But if so, still it is contended that trover will not lie for property situated as this was at the time of the transfer; that Brooks and Curtis had a lien, and that neither the plaintiff nor the original owners had a right to possession, until the lien was discharged. It is true that the plaintiff should have a right to immediate possession, and be could not maintain trover against Brooks and Curtis, without discharging their lien. But the defendant had no lien, and he cannot avail himself of the lien of Brooks and Curtis. And when Brooks and Curls attached the shoes, they waived their lien.

Defendant defaulted.