Powell v. Josiah Bradlee & Co.

The principle is unquestionable, that property in the custody of the law, cannot be replevied ; but where property had been first replevied, and there was evidence to show that the plaintiffs in that suit, had waived the delivery of the possession to them under their writ, and it was then taken under a subsequent writ, the court will not instruct the jury, that the plaintiff cannot recover, if they find that such subsequent writ issued while the properly was in the custody of the sheriff. Whether two defendants can be sued jointly in replevin, for several parcels of property, severally owned, and separately taken and detained? Qrnre. But the defect of such misjoinder, (if it be one,) may be cured, by putting the parly to his election; or by the verdict of the jury, finding for the plaintiff on one count, and for the defendant on the other. The court will not instruct the jury, that a sale for cash, payable on delivery, passes no title in the property sold to the vendee, if the cash is neither paid or tendered, where there is evidence of an usage to deliver the property without demanding the cash at the time. It does not follow that a sale is fraudulent and void, because the vendees at the time of the purchase are insolvent, and know themselves to be so, and did not communicate that circumstance to the vendors, who were ignorant thereof, and known to be ignorant by the vendees. The party to whom, by the terms, of the bill of lading, the property is to be delivered, has the legal title,'and is competent to maintain replevin therefor. If a sale of goods be made for cash, the vendors may, by an unconditional delivery, without a concurrent demand of the money, waive the cash payment; and such delivery unaffected by fraud on the part of the vendees, would pass the property. But if a sale be made for cash, the purchaser will acquire no title without payment, unless that condition be waived by the vendor. Where goods are sold upon terms of being paid for on delivery, and there is evidence of an usage in such cases, of delivering, without demanding the cash at the time; and the goods so sold are actually delivered without being paid for; it is proper that the court should leave it to the jury to say, whether the delivery was in reference to the usage, and no waiver of the cash payment; or without reference thereto, and unconditional, so as to pass the title. If parties purchase goods knowing themselves to be insolvent, and without any expectation of paying for them, and in circumstances which preclude the vendor, by ordinary prudence, from becoming acquainted with the facts, which are concealed from him by the purchaser, who shortly afterwards fails, and applies for the benefit of the insolvent laws, the contract of sale is fraudulent and void, and passes no title.- But if under such a sale, the goods are delivered to the purchaser, and he transfers them by bill of lading to a third party, who bona fide, and upon the faith of such tranfer becomes his creditor, the title does pass to such third party. In order to invalidate a sale upon the ground of fraud, it is not necessary that the jury should find, that the purchaser knew he would be unable to pay. It is sufficient, in that respect, that he should be found by the jury to be in insolvent circumstances, and had no reasonable expectation of paying for the goods purchased. An instruction, founded upon the hypothesis, that the jury may find that certain facts did not exist, of which there was no evidence, is erroneous, as tending to mislead them in forming their verdict. If one of the plaintiffs in a previous replevin, agrees to dispense with the actual delivery of the property taken under it, and to consider it delivered, so that the plaintiff in a subsequent replevin may take it as if the delivery under the first writ had been consummated, it is not competent for the plaintiffs in such first writ, to object that the property when taken under the second, was in custodia legis. But the objection that the property is in custodia legis may be made, unless there is an agreement, dispensing with the delivery prior to the execution of the second writ, although the defendants subsequently to its execution, may agree to waive the irregularity, and to ratify and confirm the proceedings of the sheriff.

Appeal, from Baltimore county court. This was an action of Replevin sued out on the 26th April, 1833, by the appellees trading under the firm of Josiah Bradiee 4r Co. for 510 barrels of flour, and 4424^ bushels of com, the property of the plaintiffs taken and detained, &e. by William Powell, Henry B. Fiddeman, John Boggs, and Alexander L. Boggs, the defendants. The property was returned by the sheriff replevied, and delivered as per schedule, which bore date on the 29th April, 1833, and the receipt of Andrew Hall of that date for both, was filed by the sheriff — the defendants severed in their pleadings. Powell and Fiddeman pleaded non cepit, and property in themselves in all the goods, and J. and, A. L. Boggs also pleaded non cepit and property in themselves and all the goods taken, &c. The plaintiffs joined issue on the first, and replied, property in themselves in bar of the second plea, on which, issue also was joined. At the trial the plaintiffs offered in evidence a bill of lading, for the corn and flour, bearing date 24th April, 1833, shipped by Tyson Of Morris, of Baltimore, on board the brig Joseph, Frisbee, master, bound to Boston, consigned to the appellees, endorsed as follows : “Boston, 12th May, 1833. Accepted to deliver the within named corn and flour to Messrs. Josiah Bradlee 5r Co. the consignees. James FrisbeeP And also the following letters from Tyson Sf Morris to the plaintiffs, dated 18th, 19th, 23d, and 24th April, 1833, marked B, C, D, and E, and the following letter from the plaintiffs to Tyson ¿T Morris, dated 20th April, 1833, marked F. (B.) Josiah Bradlee Sr Co. Boston. Baltimore, 4fA mo. 18fA, 1833. Annexed you have bill lading for 3613J bushels splendid yellow corn on board the brig Patapsco. The Patapsco did not take the quantity agreed, on account of other freight received, and wet weather prevented completing cargo as soon' as expected. This is truly a handsome lot, and well selected, about 1000 bushels in bottom of cargo very heavy and sound — 2096 bushels choice sample, can be had in after-hatchway ; the balancé similar to that on top-forward-hatch we requested insurance in former letter. If you cannot get 85 cents for this cargo on board, put it into store; think you will find it equal to the northern corn, remarkable for its cleanness, and heavy; it may be best to sell in lots of 500 bushels — 72 cents offered and refused for the fellow-cargo to the 2096 bushels on board Patapsco to arrive, 75 asked. Enclosed you have bill lading for cargo com, 2683 bushels on board the schooner Howard, all white and yellow mixed, except about 650 bushels good yellow. If you cannot get at least 80 cents, wish it put into store; requested insurance in a former letter — are about to load the brig Joseph with a cargo of corn to your address. Please keep us advised of markets. We draw on you to-day at 30' days for JV. Tyson, for $2,000, which please honour. Yours respectfully, Tyson & Noams. N. B. — Sinee writing the above we have your esteemed favour of thp 15th inst. before us, and contents particularly noted. Should you be under the least apprehension of the com we have sent you, not keeping, wish you to effect sales of such, of which we submit entirely to your better judgment. We have some in store for several weeks, and thus far keeps well — and exercise your judgments also in sales of the two cargoes here sent — will examine into accounts and take due care that the shipment now making will fully cover amount of your drafts as mentioned. Respectfully, yours, T. & N. (C.) Josiak Bradlee £> Co. Boston. Baltimore, 4th mo. 19th, 1833. Respected Friends : We advised you in ours of yesterday of having taken up brig Joseph to load for your address. A vessel offering after writing to you yesterday, which we liked better, and the captain of the Joseph preferring a freight offered him to Portland, we took the schooner Sarah and Priscilla, Chesapeake built, a good vessel of 900 bbls. burthen, and will have her despatched without delay — please get insurance effected on receipt of this, on flour, to amount of $3,000, and on com to amount of $2,200. Insurance on corn at the lowest rate of average. We have examined our accounts since receipt of yours of 15th, at hand yesterday afternoon, and find we have drawn much closer than we had any idea of — you shall be amply covered without delay. We have no fear of the com we have sent you respecting its keeping, as we have been exceedingly careful — corn brought to market in February and 1st March, was damp — since, it is more generally in good condition; however, leave you free to act with any we have sent, as in your better judgments, our interest may be promoted; will, however, repeat our full reliance on very high prices for the article next month, and high in June; our idea was to sell next month, should you have any doubts of its keeping, sell such parts at least, without delay. Fresh flour will be high also in May and June, from the unusual scarcity of wheat, and we look for better price; it may be dull for a while; sales from the wharf may be best, of which, leave you free to act. Should suitable prices be offered — corn is scarce — we have bought as low as 65 a 66 cents first of this week, and put into store, no vessels being here to load; and a good supply caused a slight re-action; it is again scarce, and sales, white at 69 cents, yellow, 71 cents; considerable bought for the Madeira market. Your esteemed friends, Tyson & Norris. N. B. — Since writing the above, yours of the 16th at hand, and regret that you should have had cause to complain ; shall of course take better care in future.” (D.) “J. Bradlee <Sf Co. Boston. Baltimore, 4dh mo. 23d, 1833. Respected Friends : Yours of the 20th at hand, and regret to learn of your having refused acceptance to our draft of the 15th. We shall proceed without delay, as advised in our two last, to make shipments sufficient to satisfy you fully, and hope you will then protect the drafts drawn. The Sarah and Priscilla is unavoidably delayed at the ship yard, undergoing some repair to her cabin. Shall despatch her with all possible speed. The flour has been in waiting to go on board for several days — no other vessel to be had to load sooner. We wish you to exercise a wholesome discretion in effecting sales of our corn and flour. Your esteemed friends, Tyson & Norris.” (E.) “Josiah Bradlee A Co. Boston. Baltimore, 4dh mo. 24tA, 1833. .Respected Friends : We wrote you yesterday, since which we find the Sarah and Priscilla will not get from the ship yard for two or three days, and having completed the loading of the brig Joseph, originally destined to Portland, concluded to send her to you — bill lading you have herewith annexed for 205 bbls. Howard street super, marked C and H, and 100 bbls. super marked S, and 100 bbls. fine flour, Susquehanna, marked F. This is a handsome parcel of flour: also 101 bbls. of best first middling, marked M; also, 2760 bushels heavy yellow corn, and 1664-|- bushels white — the yellow can nearly all be got out separate, the white being on bottom of forward hold. This will be found a very superior cargo corn, in handsome condition. Please get insurance effected on flour to amount of $2,700, and on com to amount of $3,100. We hope you will now have no hesitation in protecting our drafts. We regret you did not await our reply to your first intimation, that we had drawn too close. Exercise your better judgment in the disposition of our flour and corn. Flour is in better request to-day, and several sales of Susquehanna at 5.31 J, for export, City Mills 5|, and corn retains its price. Your esteemed friend, Tyson & Norris.” (F.) “Messrs. Tyson A Morris, Baltimore. Boston, April 20, 1833. Gentlemen : Your favour of the 15th inst. is before us, advising that you were loading the schooner Howard with corn, and had drawn another draft at 45 days for $2,500, which we have permitted to be noted for non-acceptance, and regret being obliged to do so; but we find it necessary to come to a stand. You have already drawn for nearly or quite the value of the property shipped, which is mostly corn, an article that may injure by keeping, particularly at this season, as it is said to be not well dried. We feel that there will ‘be considerable risk in holding corn, and are of the opinion, that we ought to proceed in the sales unless you will refund one-quarter of the amount advanced. Respectfully, your friend, Josiah Bradlee & Co. P. S. — Since closing the within, the schooner Darius has arrived — the corn is heated, and we shall have to sell it on board.” The plaintiffs then proved that the goods mentioned in said bill of lading,-were shipped by Tyson Norris oh board the brig Joseph, in the port of Baltimore, on or before the 24th of April, 1833. The plaintiffs further "offered in evidence, a writ of replevin issued at suit of the defendants, A. Sr J. Boggs, and also a writ of replevin issued at suit of the defendants, Powell and Fiddeman, out of Baltimore county court, which were admitted to have been issued, the first on the 25th, and the other on the 26th April, 1833, and for the recovery of part of the flour and corn respectively, which had been so shipped by said Tyson Sf Norris. The plaintiffs then proved by- Wilson, that on the 25th of April, 1833, the said writ of replevin of the said A. and J. Boggs, was placed in the hands of him, the witness, as the deputy of the sheriff of Baltimore county, and that in order to the execution of said writ, he, the witness, went down on the evening of that day to the brig Joseph, and that not finding the captain there, he went to the shore, met with the captain, and went with him to the office of an agent of the plaintiffs, when it was agreed that the vessel should remain until 12 o’clock the next day, to see whether any amicable arrangement of said action could be effected; that on the next morning, no arrangement having been made, the said writ of replevin at the suit of Powell and Fiddeman was issued, and put into his hands, as deputy as aforesaid, and that having discovered that the said vessel had got under weigh before the time agreed upon; the witness having said writ of replevin in his possession, and with a view to the execution of the same, employed a vessel to pursue the brig, and bring back the property to which said replevins respectively related. That said witness accordingly went in said vessel with said replevins, and in company with J. Boggs, and the agent of Powell and Fiddeman, in pursuit of the said brig, and overtook her, and that being about to execute said replevins, the captain of the said brig Joseph proposed to come back to Baltimore, to enable the witness to execute said writs there, to which the witness assented. That accordingly said brig returned, and the witness, after she came to the wharf, in the execution of said writs, began to unload the flour and corn, to which they related. That on the morning of the 27th of April, and whilst the witness in the execution of his duty under said writs, as deputy sheriff, was engaged in so unloading said flour and corn, Mr. Murray, another deputy of the said sheriff, came down to the wharf when he was so engaged, with the writ of replevin issued in this action, which is admitted to have been issued, for the recovery of the whole of said property, so replevied under the said writs of A. fy J. Boggs and Powell and Fiddeman. That witness then proceeded no further in the execution of said last mentioned writs, but had then unloaded about two hundred barrels of the flour, and about one thousand bushels of the com. That immediately afterwards, the said Murray executed the said writ of replevin in this action. The said witness further proved, that the said flour and corn, so taken by him under the said several replevins of the defendants, A. ¿T J. Boggs, and of Powell and Fiddeman, were never in fact delivered to them, the said defendants, nor ever appraised by him before the writ in this case was served; and that he had no knowledge of any agreement on the part of the defendants, or any of them, before the said property was replevied under the writ in this action, dispensing with the delivery to them of the com and flour respectively, under those said writs of replevin, or agreeing to acknowledge delivery. The plaintiff then offered in evidence the following schedules and receipts of A. 4r J• Boggs, and of Powell and Fiddeman. UA schedule of the goods, and chattels of William Tyson and Lloyd Morris, seized and taken at the suit of John Boggs and Alexander Boggs, by virtue of a writ of replevin, issued out of Baltimore county court to the sheriff thereof, described and appraised by us the subscribers, who first being duly summoned and sworn for that purpose. Given under our hands and seals this 29th day of April, 1833. 296 .barrels of flour marked F and S, at $5 19, $1,536 24 E. Dorsey, [seal.] Alex. Cummins, [seal.] Jacob Myers, Jr. [seal.] April 29th, 1833, received from the sheriff of Baltimore county, the above appraised flour. Jno. Boggs & Co.” “ A schedule of the goods and chattels of Frisbee, seized and taken at the suit of William Powell and Henry B. Fiddeman, by virtue of a writ of replevin, issued out of Baltimore county court, to the sheriff thereof directed, and appraised by us, the subscribers, who first being duly summoned and sworn for that purpose. Given under our hands and seals this the 29th day of April, 1833 : 2,036 bushels of com at 65c. . . . $1,323 40 E. Dorsey, [seal.] Alex. Cummins, [seal.] Jacob Myers, Jr., [seal.] April 29th, 1833. Received of the sheriff of Baltimore county the above appraised corn. Powell & Fiddeman.” Which were admitted to have been executed by the said defendants respectively, or their authorized agents, and for the property to which these said replevins related: And also proved, by the said witness, that the body of said receipts was in his, witnesses hand writing. The said witness also proved that, when he first found the brig Joseph in the evening, she was lying abreast of the powder house, about one hundred yards from the shore, in the stream, and about half a mile from Spears’ wharf, and that the captain had gone ashore for wood. That he understood from Mr. Murray at the time, that there was some agreement with J. Boggs, about the delivery of the flour under Boggs’ replevin before the replevin in this action was served, but has no personal knowledge of any such agreement. The plaintiffs further proved, by Matthew Murray, that the writ of replevin in this action, was placed in his hands as deputy sheriff for execution, on the morning of the 27th of April, 1833, and that he went with Mr. Hall the agent of the plaintiffs to the wharf, where the witness Wilson was engaged in unloading the corn and flour under the defendants’ said several writs of replevin. That a considerable portion of the corn and flour was then unloaded, and that J. Boggs, one of the defendants, was then there; that it was then and there agreed between the witness and said J. Boggs, that Wilson might cease delivering the flour, and that he, Boggs, would consider it delivered, and receipt for its delivery; and that immediately after said agreement, and not before, he the witness, executed the plaintiff’s replevin in this action; that he made no agreement except with Boggs, and that the corn and flour never were in fact delivered under the said previous writs of replevin, and that it was his the witnesses impression, that at the time of said agreement, he drew a receipt for the flour to be signed by Boggs, which Boggs then signed on board the vessel. The witness being then directed to the receipt of Boggs for the said flour, offered in evidence in this cause, then proved, that that was the receipt to which he alluded, and that it was not in his hand writing, but in the hand writing of the witness Wilson, and that he was not positive as to the time or place at which said receipt was given, but that the said agreement between him and J. Boggs, was in fact made before the plaintiff’s replevin was served. The defendants to support the issue on their part joined, then proved by Edes that he was the clerk of the defendants A. Sr J. Boggs during the month of April, 1833; that on the 22d of said month, the said defendants sold for cash, to Tyson Sf Norris, 296 barrels of flour, of which it was admitted that, the two hundred barrels replevied by the plaintiffs in this action was a part; that before this sale, the said Tyson Sr Morris had several times applied to the said A. Sr J. Boggs to sell them, Tyson Sr Morris, flour on credit, and that the said A. Sf J. Boggs had refused to sell to them on a credit; that the said flour so sold for cash was sold on the 22d and delivered on the 23d of April, and delivered as witness supposed for shipment. Tyson Sf Morris carried on business at a place about five doors from the place of business of the said A. if J. Boggs, and on the same wharf; that A. #• J. Boggs had frequently sold flour before to Tyson Sf Morris for shipment, but had for some time refused to sell to them on credit; said witness further proved, that it was then, and is now, the general usage amongst flour dealers in the city of Baltimore, when flour is sold for cash, to deliver the flour before the cash is called for, and that by the delivery, the seller is not under said usage considered as waiving his right to the cash payment. The defendants further proved by Borman, that Tyson if Morris stopped payment on the morning of the 25th of April, 1833; that some few days afterwards, witness attended a meeting of 'the creditors of Tyson if Morris, at which William Tyson of said firm was present, and addressed the meeting. That Tyson then stated to the meeting, that he and his partner had examined théir affairs; and that the utmost they would be able to pay their creditors, was twenty cents in the dollar. That Tyson then proposed to give théir creditors twenty cents in the dollar, and to give the notes of Tyson if Morris (themselves) for thát amount, in three equal instalments, payable one, two, and three years after date, without security; and in reply to the inquiries of some of the creditors, Tyson said, that they were unable to give security even for the twenty cents; and that Tyson required of the creditors a release of their claims, upon the giving of said notes by himself and partner. The defendants also proved by Keller, a competent witness on their behalf, that he was present at several meetings of the creditors of Tyson if Morris, and heard several propositions made by the latter to their creditors. That the first meeting took place within three or four days after the failure of Tyson Sr Morris, and that their first offer was, to pay twelve and a half cents in the dollar. That at a subsequent meeting held a few days afterwards, they offered to give twenty cents in the dollar by their own notes for that sum, without interest, and made payable by instalments, in one, two, and three years, and that said Tyson then stated, that the said sum of twenty cents was the utmost wdiich they could pay. The defendants further proved by Prentiss, that he knew the brig Joseph, on board of which, the flour and corn to which this action relates was shipped, and that said vessel was commanded by captain Frisby. That on the 24th of April, 1833, the vessel was lying at the lower end of Spears’ wharf. That on that day, the said captain had applied to him for the stores of said vessel, and told witness he would get them next morning. That on the next day, the vessel was about to drop down, and did drop down from the said wharf without her stores. The defendants here offered to prove by said witness, that at the time when said vessel was so dropping down without her stores, witness asked captain Frisby why his vessel was going away without her stores, and that Frisby replied that Tyson fy Ñorris had ordered him to get out as fast as possible; but the counsel for the defendants objected to the evidence so offered, and the court sustained their objection. The said witness further proved, that after the vessel had dropped down from the wharf at which she had loaded, her boat was sent back for the stores, which were supplied; that said vessel had been in the habit of getting her stores of the witness, and that she had never before left the wharf without her stores and sent back for them, as in this instance. The plaintiff then, by consent, called William Sealy, a competent witness, on their behalf, and proved by him, that he was the mate on board the brig Joseph when the cargo was shipped in her by Tyson if Norris, to part of which this action relates — that she took in her cargo at Spear’s wharf and dropped down on the morning of the 25th of April to take advantage of the tide, the vessel not being able to get out at common tide. That the wind was then to the eastward, and light, that she dropped down about half a mile, where she anchored and remained until the next day at 11 o’clock. That they had not got their stores or caulked the hatches of the vessel when they left Spears’ wharf, in consequence of the necessity of dropping down to take advantage of the tide, and that it did not require more than an hour in all to get their stores and fix their hatches; that on the evening of that day after the vessel came to anchor, they sent back for their stores, and got their wood; that the vessel was very heavily loaded, having on board two hundred and ten barrels of flour and forty-two hundred bushels of-corn. That on the evening of the day the vessel dropped down, Wilson, deputy sheriff, came on .board, and not finding the captain, then went to shore and made some arrangement with the captain about the vessel’s waiting until the next day, but what the arrangement was, the witness did not know, except from the information of the captain, who stated to witness, that he was to wait until 12 o’clock the next day, or longer if Mr. Whitridge should consider it necessary, and that on the next day'the vessel got under weigh, when she was pursued and overtaken by Wilson, and the captain agreed to go, and accordingly went back to the wharf. • The plaintiffs further proved by Fowler, a competent witness, on their behalf, that he was the clerk of Tyson fy Morris for about six weeks immediately before their failure, and kept their leger and cash book, and that on the 22d of April, 1833, as appeared by their books, they (Tyson §• Morris) bought 300 barrels of flour from A. fy J. Boggs: that from the 18th to the 25th of April, their purchases amounted to about $16,000, and their payments to about $15,000, of which latter, about $5,000 was paid for purchases during said week;, that on the 24th of April, 1833, the day before their, failure, they (Tyson £f Morris) drew in all, their checks for about $14,000, of which, about $7,000 was paid,' and the remainder was returned unpaid on the 25th. That none of these checks were to the witness’ knowledge dishonoured before the 25th, and that witness never had the slightest notice that Tyson Sf Morris were aiout to stop payment until the morning of the 25th of April; that on that morning they had sent a deposite of $4,100 to the Union Bank, and had just despatched another messenger with a further deposite of between three and four thousand dollars to said bank, when Lloyd Norris, one of the firm, came in and said he was sorry that they would be obliged to stop payment; that the Union Bank had refused to take checks on deposite, and they would be unable to go on. That a messenger was accordingly despatched after the deposite, then on its way to the Union Bank, the deposite recalled, and the notes and money borrowed, which made up that deposite, were immediately returned to the persons from whom they were borrowed. That witness was not particularly in the confidence of Tyson, but never heard either of them before the morning of the 25th, intimate that they were about to stop payment, or express the least apprehension of it. Said witness further proved that he filled up the bill of lading of the brig Joseph; that of the flour, in part composing said cargo, there was in all five hundred and ten barrels, of which, one hundred and one barrels were from the mills of Tyson Norris, and the residue was not paid for: and of the corn, there was in all forty-four hundred bushels, of which, eight hundred and sixty-eight bushels were paid for, and the residue was not paid for. That the immediate cause of their stopping was the noting of their draft for nonacceptance by the plaintiffs, of which they, Tyson fy Norris, were notified by the plaintiffs’ letter of 20th April, offered in evidence. That his, the witness’ impression up to the time of their failure, was, that Tyson if Norris were solvent, and that immediately after the failure, Tyson said he was quite confident they would pay all their debts, and that nobody would lose by them. Same witness further proved, that he examined the books of Tyson fy Norris after their failure, for the purpose of making an estimate as the basis of their proposition to their creditors, and advised them, after this examination, to offer twenty cents certain to them, and to dispose of the properly to the best advantage, and give them, the creditors, any surplus over twenty cents which it might yield; that in making this estimate he took into view the probable losses from their consignments in Boston, and the reduced price which their whole property would bring, which latter was subject to a mortgage to the Union Bank for twenty-five thousand dollars, and which they, Tyson Sp Norris, valued at sixty thousand dollars, but which was in fact, afterwards sold for forty thousand dollars — that the whole amount of Tyson Sp Norris’ consignments to the plaintiffs, from the 8th of March to the 22d of April, 1833, at the invoice price here, was $29,206, and that there was due to the plaintiff exclusive of the drafts noted by them for non-acceptance, $24,000 for drafts of Tyson Sp Norris, accepted by them previously to the consignment by the Joseph, and $6,000, a balance on the old account. That the consignment by the Joseph was on the account, qnd at the risk of Tyson Norris, and that before the receipt of the plaintiffs’ letter of the 20th of April to Tyson 8f Norris, the cargo consigned by it was intended for Portland, and that its destination was changed in consequence of the receipt of said letter. Said witness further proved that the defendants, Jl. J. Boggs, made no demand for the cash before the failure, or witness would have paid it; that such demand was always promptly met; that he does not know whether Tyson 8f Norris ever applied to purchasers to give them credit on their purchases ; that where purchases of corn and flour, &c. were made, the bills must first have been submitted to, and approved by one of the firm, and orders given by one of them to pay them ; that he recollects a purchase of two lots of corn made by Tyson 8p Norris of-Borman, on the 22d and 23d of April, 1833, and that Borman brought in his bills for them on the 23d, and called for the cash, and that Tyson 8f Norris then gave him all the cash he asked for: that Borman’s bill, first lot, was for $808.50, and the second, for $1,524.60, and that for the first, they gave Borman their check on the 24th, which was not paid, and on the second, they gave him their check on the same day for $750, which was paid, that he recollects also a purchase of corn from Mr. Crawford on the 18th of said April, which was paid by Tyson Norris’ check on the 24th of that month. The defendants then proved by Dorman, the witness before examined, that he sold the two parcels of corn as stated by the witness Fowler, to Tyson Morris on 22d and 23d of April; that he sent his boy to Tyson fy Morris with the bills for the cash three times in the course of that morning, and was unable to get it; that he then went in person and asked for payment, when Morris, one of the firm, begged witness not to press for payment at that moment; that witness insisted upon having the whole of the money, and Morris then agreed that they, Tyson f Morris, would give witness their check for the whole amount of his two bills if he, witness, would agree to deposite their check so that it would not come round for payment until the next day in the regular course of exchange between the banks, and would also lend them his check for $800, which the witness refused to do; that the conduct of Morris on that occasion, produced an impression in witness’ mind unfavourable to their credit; and witness still insisted on payment, and at length they gave witness one check for $800 and upwards, which witness was to deposite, and which he did deposite, and which was returned next day unpaid, and another for $750, which he was at liberty at once to present, and which was presented, and the money received upon it on same day: Said witness further proved, that at the meeting of the creditors of Tyson if Morris at which he was present, he never heard either of them make any offer of the surplus which their effects might produce over and above their offer of twenty cents; but on the contrary, understood that they required a release as the condition of their offer; and also proved, that about the 22d, 23d, and 24th of April, he understood from purchasers that corn was selling for more in Baltimore than in Boston; that purchasers complained that Tyson if Morris kept the price too high, and that in fact Tyson if Morris were then giving more than other purchasers. The defendants further proved by Robert Mickle, a competent witness on their behalf, that he was in April, 1833, and still is the cashier of the Union Bank of Maryland; that for some time before the failure of Tyson if Morris they had been in the habit of over-checking, and that their cheeks upon said Bank have frequently been refused; that it had been their daily practice for a long time to over-check there; and they had been indulged in this practice to a great extent, and made their over-drafts good; that the advances by the Union Bank to Tyson Morris under their mortgage of their real property to the Bank, amounted to about twenty thousand dollars; that it was the practice of Tyson fy Morris to draw drafts upon their shipments, and particularly upon their shipments to the plaintiffs, upon which they got the cash at the Union Bank as soon as they were drawn, and before acceptance; and that this was the case with the two drafts noted for non-acceptance by the plaintiffs, and that Mathan Tyson, the brother of one of the firm, was the endorser upon one of those last mentioned drafts. Said witness further proved, that on the evening of the 23d of April, 1833, after the intelligence was received by Tyson 8f Morris of the noting of their draft for non-acceptance by the plaintiffs, by the plaintiffs’ letter of 20th April,' Tyson, one of the firm, called on witness, and stated that they, Tyson Bf Morris, were just about to dispatch a cargo of com and flour to the plaintiffs by the brig Joseph, and that they had no doubt that upon the receipt of it, the plaintiffs would honour their drafts, and that the noting for non-acceptance might be kept secret; and that witness in reply to Tyson’s inquiries then gave him to understand, that if the plaintiffs accepted their drafts, the noting would not injure their credit; and that on the 20th of April, after the failure of Tyson 8f Morris, witness wrote to plaintiffs, urging them to accept the drafts of 16th and 18th April, which they had previously refused to accept, to prevent attachments being laid on the proceeds of the cargo of the Joseph in their hands. The defendants then offered in evidence, the said drafts of Tyson § Morris, with Mathan Tyson endorser, which had been cashed by the Union Bank for Tyson Morris before acceptance, and which had been noted for non-acceptance by the plaintiffs; and also offered in evidence the following accounts current rendered by the plaintiffs to Tyson § Morris of the sale of all the consignments by Tyson Sy Morris to the plaintiffs, including the cargo of the Joseph. 1. Sales of flour and corn received per brig Joseph per account and risk of Tyson Sy Morris. Sales made 20th and 22d May, 1833, for cash, $3,140 01; at 4 months, $2,832; off charges, $690 39, including freight; nett proceeds $5,332 63 to credit of T. &• M. Dated Boston, 11th July, 1833. J. B. & Co. 2. Dr. Tyson 8y Morris in account with J. Bradlee ¿y Co. Debits from 6th August, 1832, to 10th July, 1833, including balance of interest, $33,336 35. All the debits were drafts, except balance from old account, $2,488 95; $45174 interest. $16,500 accepted between 2d and 16th April, 1833. Credits from 14th August, 1832, to 10th July, 1833, $3,042 99. Sales of flour and corn, balance due $3,293 36 on interest. 11th July, 1835. Cr. Sales per Joseph, $5,332 62. 3. An interest account from 6th August, 1832, to 10th July, 1833, balance due J.B. $y Co. $451 74. The defendants further proved by William Crawford, a competent witness, on their behalf, that he, as the agent of the defendants, Powell and Fiddeman, sold to Tyson 8y Morris, on the 23d of April, 1833, the corn for which this action is brought; that on that day he had called to get payment of Tyson 8y Morris for com sold them on the 18th, which he had called for several times before without getting it; that Tyson Sy Morris then told him they could not possibly pay it on that day, as they had already given more checks than their funds on that day would meet, but that they expected to be in funds next day, and would then pay him: that they then entered into a negociation with witness about the sale of the corn of Powell and Fiddeman, and wanted witness to sell it to them on sixty days credit, which witness refused to give, but agreed to let them have it on a short credit, the time of credit not being specified; that on the 24th, the next day, the witness sent three times to Tyson Sy Morris for the money on the sale of the 18th, and they at last gave him a check for the amount, under a promise to deposite it, and that witness accordingly sent it up to the United States Branch Bank in Baltimore, where he kept his account, from which place, without his knowledge, it was immediately, and on same day, sent up to the Union Bank, and the money paid; that the delivery of the corn sold on the 23d April was completed on the 24th, and the bill of parcels sent round by him on that day to see if it was correct, and was returned with a note for the amount, at thirty-two days, which was in the hand-writing of witness’ clerk; and which witness did not see until after the failure of Tyson S{ JYorris; that after the failure, and on the morning of the 25th April, witness went to the store of Tyson &f JYorris, who told him they could not tell him any thing about their situation : and that they had been obliged to stop because JYathan 8f J. Tyson had told them that they could not get any more discounts — that witness then asked them to give him back the com, as they knew they were broken on the 24th, and that Tyson 8f JYorris then said they would return it if they could, and expressed their regret that they had forwarded the bills of lading for it the evening before : and also then told the witness that the vessel was gone; that on the 26th April witness discovered that the vessel was still in the port of Baltimore, and went again to Tyson 8f JYorris and apprised them of it, to which they replied, that they thought she was gone, and Tyson said that he had assisted in getting her out; that soon after-wards, the owners of the corn and flour sued out their writ of replevin offered in evidence in this cause, and witness went down to the Point, when the Joseph was under weigh, and was beating out at the fort, with the wind dead ahead; that the witness then went with the deputy sheriff in pursuit of her and overtook her, when the captain drew a pistol and threatened them, but at last proposed to come back to Baltimore to enable the deputy sheriff to execute the writs of replevin in his hands, which was agreed to. Defendants further proved by said witness, that according to the usage amongst sellers of corn and flour in the city of Baltimore, those articles when sold for cash are delivered before the cash is called for, and that the vendor by the delivery does not waive or vary his right under his sale for cash; that he has been in business in the city of Baltimore for fifteen or sixteen years, but does not recollect any case like this ; that in his opinion, according to the usage, if flour, &c. is sold for cash, and the cash not paid, the vendor would have a right to take his property back, but that in such a case, if the property was destroyed, or the price fell whilst it was in the vendee’s possession it would be the vendee’s loss; said witness further proved, that during the spring of 1833, Tyson 8f Morris usually gave two or three cents a bushel more than other purchasers in the city of Baltimore, and that at the time of their purchase of witness on 23d of April, witness understood from purchasers here, that the price of corn was declining to the eastward. The defendants further proved by Keller, a witness previously examined, that at the meetings of the creditors of Tyson 8f Morris, at which he was present, he never heard any offer made by them to give their creditors any surplus which their property might yield, over and above the offer of twenty cents: but that on the contrary, Tyson, one of the firm, very emphatically stated, that if the offer was accepted, they, Tyson &/• Morris, must be entirely released. Defendants also proved by said witness, that in sales for flour for cash in the city of Baltimore, it is the general and constant usage for the seller to deliver the flour before the cash is asked, and that the seller is not considered by the delivery to have changed the contract, or to have waived his right to the cash payment under the contract; that a purchaser of flour for cash is not bound to hold the flour until the cash is paid, but that whilst it remained in the hands of the party to whom it was sold for cash, witness would consider, that under the usage in the city of Baltimore, he would have a right to retake his property if the party refused to pay the cash after the delivery, unless some credit had been given to the party after the delivery, or the seller had done some act amounting to giving the purchaser a credit. The plaintiffs then proved by Lloyd Morris, that he was one of the firm of Tyson Morris, and bought the flour in question for said firm of A. J. Boggs, that his impression was, that the sale, although entered in their books, and the books of A. Sf J. Boggs, as made on the 22d, was made on the 19th of April, and that it was to be paid for on the 26th or 29th of Aprilthat he recollects that at the time of sale, when one of those days, but which the witness does not recollect, was, as he thinks, agreed upon as the time of payment ; that Boggs stated his reason for wishing to have the money on that day that he had large payments to make on that day, and showed witness his bill book referring to the payments then to be made: that at the time of the purchase, neither he nor his partner had the least notice of being compelled to stop payment j that on the evening of the 23d April they received the plaintiffs’ letter of 20th April, advising them that the plaintiffs had noted their drafts for non-acceptance, and Mr. Tyson, one .of the firm, went to see Mr. Mickle, and apprised him'that they were then shipping a cargo of corn and flour by the Joseph to the plaintiffs, and that they had no doubt that the plaintiffs upon the receipt- of it would honour their drafts, and that Mr. Mickle then stated to him that the noting for non-acceptance might be'kept secret, and that if the plaintiffs accepted their drafts the noting would not injure their credit; that they accordingly continued their arrangements for the shipment by the Joseph, and that on the 24th April she completed her loading and dropt down, and witness on the 25th supposed she had actually sailed: that on the 24th they continued to meet their engagements and gave a great many checks, to meet which, on the morning of the 25th they made a deposite of $4,100, and had gone out and borrowed several thousand dollars more to deposite, when they were for the first time apprised that the Union Bank refused to take checks on deposite, and he and his partner then after consultation, came to the conclusion that they would be obliged to stop, and accordingly, about 11 o’clock on the morning of the.25th, they resolved to stop, and recalled a messenger who had been sent by them to make a further deposite in the Union Bank, and restored the money and checks which they had borrowed to make said deposite, to the persons from whom they had borrowed them. That until that morning they had not the slightest notion of stopping, and did not know or believe before their failure, that they were insolvent, or that they would riot be able to meet their engagements, or any of them; that immediately after their failure they returned some flour which they had bought, and were shipping for Savannah, to the persons from whom they had purchased it, including one hundred barrels which they bought of the defendants, Jl. &f J. Boggs, on the day before their failure, and which they, Tyson §• Morris, returned to them; that at the time of their failure their debts amounted to about $90,000, and they had large quantities of produce in the hands of the plaintiffs, and of another house in Boston to a still greater amount; and that they had drawn upon the latter before their failure for several thousand dollars more than their consignments to them produced, so that they (Tyson Morris) are still largely indebted to the latter. That the offer of twenty cents in the dollar to their creditors was made some eight or ten days after their failure, and after Mr. Fowler had examined into their condition; and that it was as much, as upon that examination it was thought, their property would produce; that they sustained heavy losses by their shipments to Boston, not less than twenty thousand dollars, and a small loss of two or three thousand dollars by their shipments to Mew York; and that their whole property, which they estimated at sixty thousand dollars, did not produce near as much ; that when the estimate was made with a view to the offer to their creditors, the losses by shipments, &c. were not ascertained, but they made allowance for the probable losses by them; that they had frequently had difficulties before their failure, and ever since the failure of Elisha Tyson, Jr. but had always been able to meet their engagements : that their purchases of corn and flour had not generally been made as mere expedients to raise money, although they had sometimes raised money in that way. The plaintiffs further proved by William Tyson, that he was one of the firm of Tyson Morris, that he had a conversation with his partner, Morris, shortly after the flour in' question was bought by him of A. 8f J. Boggs, in which his partner told him that the flour had been bought on a short credit; that just before their failure witness met Mr. A. Boggs of said firm, and conversed with him in reference to, this purchase. Boggs said to witness, “ you know, Mr. Tyson, that our cash sales to you mean eight or ten days.” Said witness further proved that he bought the corn in question of Crawford, and that it was bought on a credit of thirty-two days; that the cargo of the Joseph was originally destined for Portland, but was ' shipped to Boston because of the plaintiffs’ letter of the 20th of April; and also, that ,he held the conversation with Mr. Mickle as stated by the witness, Morris; that he never assisted the, captain of the Joseph in getting out from the wharf, and did not recollect telling Mr. Crawford that he had done so, and that he never gave the captain any direction about getting her under weigh as quickly as possible, or hurrying her off before she was ready to sail; and that in fact on the morning of the 25th, when he conversed with Crawford, he thought she was gone; that he and his partner had no idea of stopping, until the morning of the 25th, when he himself advised it under the circumstances and for the causes stated by his partner, the witness, Morris; that at the time when the purchases of the corn and flour in question were made, they did not believe that they were insolvent or would have to stop payment, and that they did expect, and intend to pay for them according to their contract. The defendant further proved, that the whole property of Tyson Morris,. which was under mortgage to the Union Bank, was' also under a subsequent mortgage in 1827 to secure the sum of $6,000 to the wife of Lloyd Morris, which said Morris had received from her estate. The plaintiff then prayed the court to instruct the jury as follows: No. 1. That if the jury shall believe from the evidence in the cause, that the sale of the flour in question was made by John &f Alexander Boggs to Tyson 8f JYorris on or before the 22d of April for cash, and that it was delivered on the 23d, and that from and after the delivery, the Boggses relied on the individual responsibility of Tyson JYorris for the payment of the purchase money, that then from the time of such delivery in the absence of fraud, the. property in said flour was vested absolutely in Tyson fy JYorris. No. 2. That if the said contract is in law such an one as may be explained by evidence of usage, there is no evidence of any such usage in this case in relation to the said contract, as to give it a different legal operation, than if no evidence of any kind had been offered in relation to the usage. Which prayers were rejected by the court, and the court informed the jury, that the usage offered in evidence, combined with the other facts in the cause, although said usage might not control or govern the legal operation of the contract, yet the sáme with said facts were evidence, from which the jury might infer, that there was not an unconditional delivery of the goods. That whether there was or was not an unconditional delivery of the goods, was a question of fact under the evidence, for the consideration of the jury. The defendants excepted to said instructions. These 1st and 2d prayers and instructions, are called the additional prayers in the arguments of the counsel. The defendants then prayed the court to give the following instructions to the jury. 1. If the jury believe that the replevin issued in this cause was served before the completion of the service of the first replevin upon the same property, and while the property was in the custody of the sheriff, that plaintiffs cannot recover. 2. If the jury find that the replevin issued in this case, was for property not jointly owned or jointly taken by defendants, but part owned and taken by Messrs. John Boggs Sf Co. and part owned and taken by Powell 8f Fiddeman, then the plaintiff cannot recover in this suit. 3. If the jury believe that the sale made by John Boggs £f Co. was for cash, to be paid on delivery, and that such sale was a conditional one, as against the vendor, and that said Tyson Of JYorris neither paid nor offered to pay said money to said John Boggs Co. no title vested in them as against the vendor, and plaintiffs are not entitled to recover. 4. If the jury believe that at the time T. Sf N. made the purchase of Powell fy Fiddeman and John Boggs fy Co. they were largely insolvent, and knew themselves to be so, and concealed such insolvency, and that said P. Sp F. and J. B. tip Co. neither knew of such insolvency, nor had the means of knowing it, then the sale is void; unless the jury believe, - that the plaintiffs are bona fide purchasers for value of said property, and there is no evidence of their being such purchasers. 5. If the jury believe that the property sought to be recovered in this suit, was bought and shipped by Tyson ip Norris for their own account to the plaintiffs, and that neither the bill of lading nor the property ever came to the hands of the plaintiffs, at or before the institution of this suit, and that no orders for the purchase of said property was ever given to said Tyson Norris by the plaintiffs, or either of them, the plaintiffs cannot recover. 6. That if the jury find from the evidence the facts stated in the defendants’ second prayer, and also, that the said several replevins, of A. fy J. Boggs, ^nd of Powell 8f Fiddeman, were issued on different days, and without any concert between Boggs and P. F. placed in the hands of said sheriff; that on the 25th of March, the said sheriff went with the replevin of A. 8/- J. Boggs to the brig Joseph, and there agreed with the captain of the said brig, that he, the captain, would wait until the next - day to see whether some arrangements could be made for the adjustment of said replevin, that on the succeeding day,- Powell fy Fiddeman issued their said writ of replevin, and placed it in the hands of the said sheriff, and that said replevin being so in his hands, it was ascertained by the. sheriff, that the said vessel was getting under weigh, and that the said sheriff took a vessel, and went with J. Boggs and the agent of P. F. or either of them, in pursuit of said vesssel for the purpose of taking said property under and agreeably to said several replevins, and putting it on board the vessel so taken by the sheriff; that on arriving at the brig Joseph the captain of said vessel, voluntarily proposed and agreed, to come back to Baltimore to enable the sheriff to take the property under' said several replevins, and in fact returned, and that A. §• J. Boggs never in any wise interfered with the possession of the corn, nor Powell Fiddeman, or their agent, with the possession of the flour, then the plaintiffs have improperly joined in this action, two distinct causes of action against the said A. fy J. Boggs, and the said Powell 8f Fiddeman, and therefore are not entitled to recover. 7. That if the jury find from the evidence, that before the bringing of this action, the defendants, J. &/• A. Boggs, had sued out their writ of replevin offered in evidence in this cause for the flour for which this action is brought, and the defendants, Powell 8f Fiddeman, had also sued out their writ of replevin offered in evidence in this case for the com for which this action is brought; that under said writs, the sheriff of Baltimore county, before the bringing of this action, had seized and taken into his custody the said com and flour, being then on board the brig Joseph, and that whilst the said sheriff, under and in execution of said writs, was engaged in taking said corn and flour out of said brig, the writ of replevin in this action was issued, and delivered to the said sheriff; and that under said last mentioned replevin the said sheriff, the said property being so in his custody, replevied and delivered the said property to the plaintiffs in this action, or their agent, without ever, in fact, having delivered the said corn or flour to the said defendants respectively, under their said replevins, and without any acknowledgment of the delivery of the said flour, by the said A. &/• J. Boggs, or either of them, or of the said corn by the said Powell fy Fiddemen, or either of them, before the said property was so replevied under the writ of replevin in this cause, then the plaintiffs are not entitled to recover in this action. 8. That if the jury find the facts stated in the preceding, the defendants first prayer, except only that they find, that before the execution of the writ of replevin in this action, there was an-acknowledgment of delivery by the defendant, John Boggs, as stated by the witness,- Murray, then the plaintiffs are not entitled to recover .the corn for which this action is brought. ■ . 9. That if the jury find from the evidence that, before the bringing of this action, the flour for which it was brought, was obtained by Tyson Sp Morris from the defendants, A. dp J. Boggs, and the corn for which it is also brought, was obtained by said Tyson 8p Morris from the defendants, Powell &p Fiddeman, under several and distinct contracts with said, defendants respectively, and that being so obtained, the said flour and' corn were shipped by said Tyson Sf Morris on board the brig Joseph, and that whilst-there, and before the bringing of this action, the defendants, A. 8p J. Boggs, replevied the said flour, and the said defendants, Powell &p Fiddeman, replevied said corn under their several writs of replevin offered in evidence in this cause, and that the said A. 8p J. 'Boggs, never claimed or took possession of said corn under their said replevinj or otherwise, and the said defendants, Powell 8p Fiddeman, never claimed or took possession of said flour under their said replevin, or. otherwise, at any time before the bringing of this action, and that the plaintiffs or their agents, sueing out the replevin in this case, knew the facts above stated before this action was brought; that then the plaintiffs’ causes of action, if they have any, against the said A. 8p J. Boggs, and. the said Powell Sf Fiddeman, for the taking or detention of said corn and flour so obtained, under their said replevins, are wholly distinct, and independent causes of action,-against the said' A. 8p J. Boggs, and the said Powell 8p Fiddeman, and the plaintiffs have improperly joined them- in this action, and are therefore not entitled to recover. ■ 10. That if the plaintiffs, upon the evidence in this cause, have any right of action for the recovery of the property for which this action is brought, their right and cause of action against the defendants, A. fy J. Boggs, is wholly distinct from, and independent of their right and cause of action against the defendants, Powell 8f Fiddeman, and that the plaintiffs have in this action improperly joined such distinct and independent causes of action, against the said A. 8f J. Boggs alone, and the said Powell 8f Fiddeman, and are therefore not entitled to recover.”- Which, and each of which instructions, the court (Archer, Ch. J.) refused to grant, but gave and granted to the jury the following prayers, directions, and instructions : 1. If the jury believe the contract for the sale of the goods in controversy was for cash, and that there was an unconditional delivery of the goods to Tyson JVorris, and that there was no fraud in the sale, then the legal title to the goods vested in Tyson JVorris, and it was competent for them to pass the title to the plaintiffs; although they had not complied with the terms of the contract in paying for the said goods. 2. If the jury believe the sale was for cash, then Tyson 8f JVorris acquired no title to the .goods without the payment of cash, unless the jury should believe that the defendants waived the cash.payment by delivery; and if the jury find they did waive the cash payment by delivery, then the title vested by the delivery in Tyson 8f JVorris. 3. If the jury believe that it was the usage and practice among merchants and dealers, when articles of merchandise are sold for cash, to deliver the articles without demanding the cash at the moment of delivery, then the jury are at liberty to infer that the defendants were acting in reference to such usage, and from such usage and the evidence in the cause, that the delivery was not a waiver of the cash payment, and if the jury should find the delivery was not a waiver, then the delivery of the goods did not vest the title in the vendees, if the jury find that they did not make payment for the said goods. When the court in these directions speak of a conditional delivery, and of waiving cash payments, they mean to leave it to the jury to determine whether, in the delivery, the party meant to relinquish his right over the property, or meant to resume it in case the cash was not paid; or, in other words, did the defendants, in the delivery, mean or not, to waive any of their rights under the contract of sale and delivery. ‘ ' 4. If the jury believe the contract was made by Tyson fy JVorris, when in point of fact they were insolvent and unable to pay their debts, and that Tyson Sf JVorris were aware of their situation, and that they had no expectation of paying the sum contracted to be paid according to the contract, and that the defendants, by ordinary prudence, could not have known of the existence of such facts, and that such facts were concealed from the defendants by said Tyson fy JVorris, and that they did in fact stop payment on the 25th of April, 1833, and did shortly after apply for the benefit of the insolvent laws, and failed to pay for the- said goods, then the contract of sale was; fraudulent and void, and the delivery passed no title to Tyson § Norris ; and in such case, the plaintiffs acquired by the bill of lading and transfer no title to said goods, unless they became creditors subsequent to the delivery oí the goods to Tyson fy JVorris. 5. If the jury believe from the evidence that the sale and delivery of the goods in controversy were made as stated in plaintiffs first prayer, then the title to the goods vested by such sale and delivery in Tyson JVorris, notwithstanding they were insolvent at the time of such sale and deliveiy, and knew that they were so insolvent, unless the jury shall also find, that at the time of such sale and delivery said Tyson fy ,Norris knew that they were not able to pay for the goods, and that they would not be able to pay for them, and neither intended nor expected to pay for them, and made said purchase, and obtained such delivery, with such knowledge, expectation, and intention. 6. If the jury find the sale and delivery as stated in plaintiffs’ first prayer, and that at such sale and delivery, Tyson # Norris intended to pay for them, then the title vested in them in the goods, notwithstanding the said Tyson 8f JTorris were then as greatly insolvent as they proved after-wards to be, and knew that fact. These prayers were granted, provided the jury believe that the delivery of the goods was an unconditional delivery. 7. That if the jury find from the evidence that before the bringing of this action, the defendants, A. 4' J. Boggs, being the owners of the flour for which this action is brought, sold it for cash to Tyson 4' Norris, and delivered it to Tyson (f Norris under said sale, and. that they, A. &f J. Boggs, did not intend by said delivery to give credit for said flour to Tyson Sf Norris, or to waive their right to the cash payment under said contract — that after said delivery Tyson 4' Norris consigned it to the plaintiffs, on the account, and at the risk of them, the said Tyson 4" Norris, and that the plaintiffs never purchased said flour from Tyson fy Norris, nor made them any advances, nor contracted for them any responsibilities upon said consignment; and also, that according to the general and known usage amongst flour dealers in the city of Baltimore, in sales of flour for cash, it is usual for the seller to deliver the flour before the cash is received or required, and that according to said usage, the seller, by its delivery, is not considered as waiving his right to the cash agreeably to the contract, and that there was no unreasonable delay on the part of A. 4" •/. Boggs after the delivery of said flour in requiring the cash or the return of their flour under said contract, then the plaintiffs are not entitled to recover. When the court in these directions speak of a conditional delivery, and of waiving cash payment, they mean to leave it to the jury to determine, whether in the delivery, the party meant to relinquish his right over the property, or meant to resume it in case the cash was not paid; or in other words, did the defendants in the delivery mean or not, to waive any of their rights under the contract of sale and delivery 8. That if the jury believe, that at the time when Tyson 4* Norris purchased the corn, for which this action is brought, of Powell and Fiddeman, they, Tyson 4' Norris, were insolvent, and knew themselves to be so, and had no reasonable expectation of being able to pay for said corn; and -that knowing their insolvent condition, they concealed it from the said Powell Sf 'Fiddeman, and their agents who made said sale, and that Powell §• Fiddeman, and their said agent, did not know the insolvent condition of Tyson Sf JYorris, and had no means of knowing it, either at the time of the purchase, or at any time before the delivery of the corn to Tyson Sf JYorris, and that Tyson Sf JYorris made said purchase for the purpose of getting possession of said corn without paying, for it, and transferring it to the plaintiff?, either to secure a previous debt due by them to ’ the plaintiffs, or to protect theif endorser, JYathan Tyson, against his previous responsibilities for them by endorsement, and that the plaintiffs never purchased said corn of Tyson Sf JYorris, nor made' them any advance, nor contracted any responsibilities for them upon said corn, then the said purchase and delivery of the corn, vested no title to it in Tyson Sf JYorris, and the plaintiffs are not entitled to recover. 9. If the jury believe the goods were purchased on credit, and not for cash, and that the property was delivered them in the absence of fraud, the plaintiffs are entitled to recover. 10. If the jury believe that Mr. Boggs, one of the defendants, agreed to dispense with the actual delivery of the goods replevied by him, and to consider • them as delivered, so that the plaintiffs’ replevin might be executed in the same manner as it would have been if the replevin- by Boggs had been first' executed, and the goods delivered; then it is not competent for John Sf Alexander Boggs, or either of them, to object that the said goods at the time of the execution of this replevin, were in the custody of the law, and not liable to replevin. 11. If the jury find the agreement in the preceding prayer, and-that the same was known to the other defendants at the time they signed the receipts of the 29th April , for the corn, and that said defendants thereby meant to ratify and confirm what the sheriff had done, and to waive the irregularity which might have existed in serving the present replevin, then it is not competent for the defendants, or either of them, claiming to be the owners of said corn, to object that the said goods were in the custody of the law, and not liable to replevin. To which refusal of the court to grant the above rejected ten prayers of the defendants, and to the refusal to grant each of them, and to the granting of which prayers and instructions by the court, and to the grant of each of which, the defendants, by their counsel, prayed the leave of the court here to except. The jury found a verdict for the plaintiffs on both issues, with nominal damages; a motion for a new trial being overruled, the defendants brought the present appeal.