Page:Federal Reporter, 1st Series, Volume 5.djvu/690

 678 FEDERAL REPORTER. �the Bame. Warriner never paid for said property, or claimed the same, while in the custody of the railway company. As stated at the trial, where property acquired by fraud has passed to innocent purchasers from the vendee for value, after delivery to the vendee, the vendor cannot as betM'een himself and said purchasers reclaim the same. Tet the right of stoppage in transit, cannot be defeated by sueh sale before delivery. The cases cited turn mainly on the question of actual or constructive delivery, the bona fides, and where given by the alleged purchaser. �The dispute as to a valuable consideration îs a very old one, and pertains not to the purchase of goods alone, but to the transfer of commercial paper. As to the latter class of cases, the most noted are those in New York. The case before the court does not call for any inquiry as to the nature of a valuable consideration when the same is for an antecedent debt, and the transferor makes the transfer for such consideration alone. Here the vendor made no trans- fer. He had not even received possession of the property. It was still in possession of the carrier, subject to stoppage in transltu. The shipment was made for cash on delivery. The attaching creditors were subordinate in right to the ship- per, and therefore the plaintifïs' replevy must hold. �The property in question had never passed into the actual custody of Warriner, and he had never complied with the terms of shipment or purchase. His attaching creditors had never purchased this property from him, nor parted with value therefor, nor dealt with him on the faith of his owner- ship thereof. Indeed, he never became the owner of the property, for he never complied with the terms of the condi- tional sale nor exercised any right of possession. But it is contended that there was a right of possession vested in the vendee which passed to the attaching creditors, viz., a right on payment of the sale price and charges of transportation to the possession of the property; and consequently that the plaintiff, on taking the property by replevy, ought to respond to the attaching creditors for the difference in the price at ����