Miller, J.,
delivered the opinion of this Court.
The appellee issued an attachment against Gill, Hardman & Stephens, non-residents, which was laid in the hands of the garnishees to affect a certain quantity of pig iron consigned to them by the appellant, Wilson, who claimed it as his property. The plaintiff, the Rail Road Company, insists [403]*403that the iron belonged to their debtors under an assignment and delivery thereof to them by the owner Whitman. Wilson claims “it under a subsequent assignment from the same party,” under which he took possession and forwarded the iron to Baltimore, to the garnishees, to be sold on his account. It appears the iron, consisting of some sixty odd tons, before either of these assignments was made, was lying in half and quarter ton piles, part at the Fanny Furnace in Virginia, where it had been smelted, part on the road to Sandy Creek, and part at Sandy Creek. The evidence in other respects is confused and conflicting, but sufficient to raise the questions presented by the several prayers on either side, of which lour were offered by the appellee, and four by the appellant, Wilson. No question is raised upon the granting of the appellee’s first, third and fourth prayers, and it is admitted the appellant’s third prayer was correct and properly granted. The action of the Court upon the remaining prayers is now to be reviewed. The legal proposition presented by the appellee’s second prayer, is, upon the facts therein stated and left to the finding of the jury, that there was in law such a delivery of the iron by Whitman, the vendor, to Gill, Hard-man & Stephens, the vendees, as precluded the vendor from the exercise of any acts of ownership over it without the assent of the vendees, even though subsequent to sueli agreement of sale and delivery, they failed in business and were under protest. The hypothesis of this prayer puts out of view the existence of the vendor’s lien, because it leaves to the jury to find the assignment was bona fide, made in consideration of an antecedent indebtedness of the vendor to the vendees, and was, therefore, correct, provided the facts stated constituted a sufficient delivery to pass the title to the property to the vendees. The facts upon which the delivery is based are, that whilst the iron was thus partly at the furnace and on the road, the vendor in pursuance of the agreement of sale, “ and for the purpose of making delivery of the iron ” to the vendees, directed his agent to show the same to the [404]*404agent of the vendees, and the latter was accordingly shown the same at the furnace and on the road by the agent of the • vendor, and the vendor then and there directed the said agent of the vendees to have the iron charged in the books of the vendor against the vendees, and it was so charged. In deciding what acts will constitute delivery, regard must be had to the subject-matter of sale, the character of the transaction and the intention of the parties, in order to ascertain whether the delivery was such as the nature of the case admitted. Where ponderous articles incapable in the ordinary course of business of actual manual delivery, are the subject of sale, symbolical or constructive delivery is sufficient, and such constructive delivery may be implied from the acts of the parties. Marking, measuring, weighing, &c., are held to amount in such cases to constructive delivery, but the only reason why such acts are required is, to identify the particular goods sold, for if they are capable of being identified without these acts, and by the contract of sale are identified, that is sufficient and the title to the property passes. Here, there was no necessity for marking, measuring or weighing, or of separation of a paid from a mass of the same material in order to identify the part sold. The sale was of the whole quantity of iron lying in piles at the furnace and on the road, and the parcels constituting the whole were pointed out and shown by the agent of the vendor to the agent of the vendees, and the whole was charged in the books of the vendor to the vendees, by the agent of the latter, under the direction of the vendor. These acts were done with the intent and for the purpose of making delivery, and were sufficient to make such constructive delivery as would pass the title to the property to the vendees — it was as complete a delivery for this purpose as the subject-matter under the circumstances reasonably allowed. In Jewett vs. Warren, 17 Mass., 300, a person was appointed by the vendor to deliver logs lying within a boom, who went within sight of them with the vendee and showed them to him, and this was held as effectual for such kind of [405]*405property, as delivery over in hand of a chattel capable of such possession, and was sufficient to pass title, even though the vendee suffered the logs to lie in the boom as was usual in such eases, until he liad occasion to use them, and did not place any person over the logs to take care of them for him. This ease and those of Van Brunt vs. Pike and Ward, 4 Gill, 270; Atwell vs. Miller and Mayhew, 6 Md. Rep., 10; Hall and Loney vs. Richardson, 16 Md. Rep. 396, and Arnold vs. Delano, 4 Cush., 33, fully sustain the action of the Court in granting this prayer.
The claimant’s first prayer, as presented, was properly refused, and the granting of it with the modification was correct, because as we construe the prayer it assails the transaction between Whitman and Hardman, and the firm of which Hardman was a partner, as a fraud upon the creditors of Whitman, and the assignment could not be assailed on this ground by the claimant, unless he showed himself to be a creditor of Whitman at the time the assignment was made. We find no error in the refusal of the claimant’s second prayer, or in the modification to it by the Court, of which the appellant can complain. The acts of delivery mentioned in the appellee’s second prayer, coupled with the statement in this prayer that after the sale to the firm the iron was forwarded by direction of Hardman, one of the firm, and therefore one of the vendees, to Sandy Creek, on its way to Wheeling, constituted not only such delivery as would pass the title, but such divestiture of possession as would prevent the assertion of the vendor’s lien, or the regaining of possession by stoppage in transitu. As we construe the prayer, it admits that after the sale and delivery, and before the vendor attempted to assert his lien, the iron was forwarded by direction of the vendees to Sandy Creek, on its way to Wheeling. It does not present the case of a forwarding, by the vendor, through a carrier or middle-man to the vendees, or to a place designated by them for delivery, in which the right of stoppage in transitu would unquestionably [406]*406exist, but makes a case of an actual taking of possession by the vendee so as to put an end to the vendor’s lien.
The claimant’s fourth prayer presents another aspect of the case.
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Miller, J.,
delivered the opinion of this Court.
The appellee issued an attachment against Gill, Hardman & Stephens, non-residents, which was laid in the hands of the garnishees to affect a certain quantity of pig iron consigned to them by the appellant, Wilson, who claimed it as his property. The plaintiff, the Rail Road Company, insists [403]*403that the iron belonged to their debtors under an assignment and delivery thereof to them by the owner Whitman. Wilson claims “it under a subsequent assignment from the same party,” under which he took possession and forwarded the iron to Baltimore, to the garnishees, to be sold on his account. It appears the iron, consisting of some sixty odd tons, before either of these assignments was made, was lying in half and quarter ton piles, part at the Fanny Furnace in Virginia, where it had been smelted, part on the road to Sandy Creek, and part at Sandy Creek. The evidence in other respects is confused and conflicting, but sufficient to raise the questions presented by the several prayers on either side, of which lour were offered by the appellee, and four by the appellant, Wilson. No question is raised upon the granting of the appellee’s first, third and fourth prayers, and it is admitted the appellant’s third prayer was correct and properly granted. The action of the Court upon the remaining prayers is now to be reviewed. The legal proposition presented by the appellee’s second prayer, is, upon the facts therein stated and left to the finding of the jury, that there was in law such a delivery of the iron by Whitman, the vendor, to Gill, Hard-man & Stephens, the vendees, as precluded the vendor from the exercise of any acts of ownership over it without the assent of the vendees, even though subsequent to sueli agreement of sale and delivery, they failed in business and were under protest. The hypothesis of this prayer puts out of view the existence of the vendor’s lien, because it leaves to the jury to find the assignment was bona fide, made in consideration of an antecedent indebtedness of the vendor to the vendees, and was, therefore, correct, provided the facts stated constituted a sufficient delivery to pass the title to the property to the vendees. The facts upon which the delivery is based are, that whilst the iron was thus partly at the furnace and on the road, the vendor in pursuance of the agreement of sale, “ and for the purpose of making delivery of the iron ” to the vendees, directed his agent to show the same to the [404]*404agent of the vendees, and the latter was accordingly shown the same at the furnace and on the road by the agent of the • vendor, and the vendor then and there directed the said agent of the vendees to have the iron charged in the books of the vendor against the vendees, and it was so charged. In deciding what acts will constitute delivery, regard must be had to the subject-matter of sale, the character of the transaction and the intention of the parties, in order to ascertain whether the delivery was such as the nature of the case admitted. Where ponderous articles incapable in the ordinary course of business of actual manual delivery, are the subject of sale, symbolical or constructive delivery is sufficient, and such constructive delivery may be implied from the acts of the parties. Marking, measuring, weighing, &c., are held to amount in such cases to constructive delivery, but the only reason why such acts are required is, to identify the particular goods sold, for if they are capable of being identified without these acts, and by the contract of sale are identified, that is sufficient and the title to the property passes. Here, there was no necessity for marking, measuring or weighing, or of separation of a paid from a mass of the same material in order to identify the part sold. The sale was of the whole quantity of iron lying in piles at the furnace and on the road, and the parcels constituting the whole were pointed out and shown by the agent of the vendor to the agent of the vendees, and the whole was charged in the books of the vendor to the vendees, by the agent of the latter, under the direction of the vendor. These acts were done with the intent and for the purpose of making delivery, and were sufficient to make such constructive delivery as would pass the title to the property to the vendees — it was as complete a delivery for this purpose as the subject-matter under the circumstances reasonably allowed. In Jewett vs. Warren, 17 Mass., 300, a person was appointed by the vendor to deliver logs lying within a boom, who went within sight of them with the vendee and showed them to him, and this was held as effectual for such kind of [405]*405property, as delivery over in hand of a chattel capable of such possession, and was sufficient to pass title, even though the vendee suffered the logs to lie in the boom as was usual in such eases, until he liad occasion to use them, and did not place any person over the logs to take care of them for him. This ease and those of Van Brunt vs. Pike and Ward, 4 Gill, 270; Atwell vs. Miller and Mayhew, 6 Md. Rep., 10; Hall and Loney vs. Richardson, 16 Md. Rep. 396, and Arnold vs. Delano, 4 Cush., 33, fully sustain the action of the Court in granting this prayer.
The claimant’s first prayer, as presented, was properly refused, and the granting of it with the modification was correct, because as we construe the prayer it assails the transaction between Whitman and Hardman, and the firm of which Hardman was a partner, as a fraud upon the creditors of Whitman, and the assignment could not be assailed on this ground by the claimant, unless he showed himself to be a creditor of Whitman at the time the assignment was made. We find no error in the refusal of the claimant’s second prayer, or in the modification to it by the Court, of which the appellant can complain. The acts of delivery mentioned in the appellee’s second prayer, coupled with the statement in this prayer that after the sale to the firm the iron was forwarded by direction of Hardman, one of the firm, and therefore one of the vendees, to Sandy Creek, on its way to Wheeling, constituted not only such delivery as would pass the title, but such divestiture of possession as would prevent the assertion of the vendor’s lien, or the regaining of possession by stoppage in transitu. As we construe the prayer, it admits that after the sale and delivery, and before the vendor attempted to assert his lien, the iron was forwarded by direction of the vendees to Sandy Creek, on its way to Wheeling. It does not present the case of a forwarding, by the vendor, through a carrier or middle-man to the vendees, or to a place designated by them for delivery, in which the right of stoppage in transitu would unquestionably [406]*406exist, but makes a case of an actual taking of possession by the vendee so as to put an end to the vendor’s lien.
The claimant’s fourth prayer presents another aspect of the case. It asserts that if the jury should find the iron was delivered, as before stated, but, in fact, remained at the furnace and on the road-side, without being taken away or otherwise put in possession of the vendees, and that such delivery was made against certain notes of the vendees given to the vendor in advance, for the iron, which notes were then outstanding and unpaid, and that the title to the iron remained in the same condition as between vendor and vendees, without the intervening claim of any third party at the time it was sold to "Wilson, if the jury shall find such sale, and whilst the said iron so remained, the vendees were insolvént and unable to pay their said notes, then the vendor had the right to re-take the iron before it came into the actual possession of the vendees, and if the jury shall find that the vendor did re-take it, either by himself or an assignment .to Wilson, who under said assignment re-took it, then the plaintiff cannot recover under the second issue. Assuming there was sufficient evidence to support the hypothesis of this prayer, (and, we think, the record, though not stating the testimony fully, furnishes sufficient evidence for this purpose,) it correctly announces the law and should have been granted. The law applicable to such 'a case as this prayer presents is very clearly and accurately stated by Chief Justice Shaw, in the case of Arnold vs. Delano, 4 Cush., 38, 39. “There is,” says he, “manifestly a marked distinction between those acts, which, as between vendor and vendee, upon a contract of sale, go to make a constructive delivery and to vest the property in the vendee, and that actual delivery by the vendor to the- vendee, which puts an end to the right of the vendor to hold the goods as security for the price,” and as to a sale on credit, which was the case he was deciding, he says: “but the law in holding that a vendor who has thus given credit for goods waives his lien for the price, does so on one implied condi[407]*407don, which is, that the vendee shall keep his credit good. If, therefore, before payment the vendee become bankrupt or insolvent, and the vendor still retains the custody of the goods or any part of them: or if the goods are in the hands of a carrier or middle-man on their way to the vendee, and have not yet got into his actual possession, and the vendor before they do so can regain his actual possession by a stoppage in transitu; then his lien is restored and he may hold the goods as security for the price.” In that (¡ase the subject of sale was wood cut and corded on the vendor’s land. The sale was on credit, a note at six months being given in payment. The vendee had a license to enter and take the wood at any time within a year, but did not do so, and before the note matured became insolvent, and the Court held that whilst there was a good sale and delivery as between vendor and vendee, yet the lien being an incident to the possession was not defeated, because there had been no change of possession — that remained in the same condition at the time of insolvency as at the time of sale. The lien of the vendor always exists until he voluntarily and utterly resigns the possession of the goods sold and all right to detain them. So long as the vendor does not surrender actual possession, his lien remains, although lie may have performed acts which amount to a constructive delivery, so as to pass the title or avoid the statute. In all cases of symbolical delivery, which is the only species of constructive delivery sufficient to give a final possession to the vendee, it is only because of the manifest intention of the vendor utterly to abandon all claim and right of possession, taken in connection with the difficulty or impossibility of making an actual and manual transfer, that such a 'delivery is considered as sufficient to annul the lien of the vendor. Story on Sales, secs, 286, 290. Upon the facts hypothetically stated in this prayer, the iron remained in the same places at the time of the insolvency of the vendees, and when it was taken possession of by the claimant, under the authority of the vendor, in which it was at the time of sale. It was as [408]*408much in the vendor’s possession then as when sold. Bo change of possession was effected, there was no symbolical delivery and no act of ownership exercised over it by the vendees. Under such circumstances the vendor had a right to assert his lien in the manner in which the prayer states it was done.
(Decided 17th March, 1868.)
Judgment reversed, and procedendo awarded.