Neal & Shelton As to the relative rights of the proprietors of mill sites upon the same stream,

V.

Henry.

see Bigelow vs. Newell, 10 Pickering, 348. Whether a lower proprietor on a stream may raise a dam, so as to obliterate and submerge a fall higher up, and thereby prevent the erection of a mill on a suitable site? is a question which is left undetermined. The case decides that where an upper proprietor has actu ally built, or is building a mill thereon, a lower proprietor cannot, without a right acquired by grant, prescription, or actual use, erect a new dam, or raise an old one, so as to destroy the upper mill privilege, simply under a liability to pay damages. 10 Pick. 357.

The facts in this case are stated at large with a view of showing that the case is an authority, that merely overflowing the land of an upper proprietor, is an actionable injury, since it will be seen that the evidence is pretty equally balanced as to the loss or damage occasioned the plaintiff by the inundation.-Reporter.

POTTER vs. COWARD.

SALE. When u sale of chattels is complete. A sale of chattels is complete so soon as both parties have agreed to the terms. So soon as the vendee says, "I will pay the price demanded," and the vendor says, "I will receive it," the vendee has a right to demand the thing sold; the vendor to demand the consideration, and they are mutually entitled, the one to his action for the thing, the other to his action for the money.

SAME. Sheriff's sale the same. Shaw v. Smith, 9 Yer. 97, decides that whatever property is vested in the sheriff by his levy on a chattel, passes to the bidder at his sale, so soon as the hammer is down.

PRACTICE. Continuance newly discovered testimony. If an affidavit for a continuance, on the ground of newly discovered evidence, shows, that before the trial, due diligence was used to procure evidence of the fact expected to be proved by the newly discovered evidence, and the fact is material, it is error to refuse a new trial thereupon.

On the 30th of January, 1835, a public sale of sundry negroes, belonging to the estate of C. and M. G. Sewell, was had under an order of the county court of Tipton, authorising and directing the administrator to make it, for cash in hand. The defendant was the highest and best bidder for four negroes, who were struck off to him by the auctioneer. One of them, named Lewis, was struck off at the price of $680. The bidding was not completed till late in the day; and, about sundown, the administrator said, in the hearing of the defendant, and of other purchasers of negroes, that it was then too late to proceed with the business, but that they must attend the next morning, at the place of sale, and finish

or close it. None of the negroes bid off by the defendant were proven to have been delivered to him, on the day of sale, nor did he pay any of the purchase money on that day. The defendant assented to the administrator's proposition, to attend next morning at the place of sale, and finish the business, and left for the night. During the night Lewis died suddenly, two miles from the place of sale, in the direction of the defendant's house. Next morning defendant atttended at the place of sale, and then paid for, and received the sur viving negroes bid for by him, but refused to pay for Lewis, on account of his having died between the bidding and the time fixed for the payment and delivery. Lewis was in his usual health, on the day of the sale, and was healthy.

The administrator thereupon sued the defendant in Tipton county court, on the 9th of June, 1835, in assumpsit. The declaration continued three counts, the first of which alleged the special circumstances, and that after the defendant became the highest bidder, and was declared the purchaser of the negro, he was legally possessed of him, and in consideration, &c. The second count was indebitatus assumpsit for a negro sold and delivered; the third, a quantum valsbat. The defendant pleaded non assumpsit, and issue was thereupon joined. The cause was tried at October term, 1836, of Tipton county court, before his Honor Judge Read and a jury. The evidence submitted to the jury were the facts above stated. His honor charged the jury:

That the party in whom the right of property in the negro was at his death, must bear the loss of him; that in order to produce a change of ownership in a chattel, there must be a delivery actually or constructively. Actually, as when the chattel is received by the vendee, or is tendered by the vendor; constructively, as if a man contracts for a thing not present, but pays or satisfies the seller; that if the acts to be done are simultaneous, as in a cash sale, in order to bind the purchaser, the property must be delivered or tendered; and, in like manner, to bind the vende, the money must be paid or tendered; that in either case, the party might waive such right, and either pay without receiving the property, or deliver without receiving the price.

Potter

V.

Coward.

Potter

V.

Coward.

The jury found the issue for the defendant. The plaintiff moved for a new trial, and in support of his notice produced an affidavit of Bryan Holloway and James E. Munford, stat ing facts which came to the plaintiff's knowledge after the trial, tending to show that the defendant exercised certain acts of ownership over Lewis, on the evening of the sale, importing that he considered the property to have passed to himself. The new trial was refused, whereupon the plaintiff filed his bill of exceptions, which stated the above facts, and prayed this appeal in nature of a writ of error.

W. H. LOVING, for the plaintiff, insisted, 1. That in case of a sale of personal property, at auction, so soon as the property is struck off to the bidder, the right of property is vested in him. And if the subject of the contract die, or be destroyed, at any moment afterwards, it is his loss, provided the vendor did not withhold the possession against the will and demand of the vendee. But the vendee has no right to the possession, until he has performed, or offered to perform the condition of the sale; and when he has so done, he is entitled not only to the possession, but also to his action. And he cited to this purpose, Chitty on Contracts, 110, top page: Noy's Maxims, 68.

2. That a new trial will be granted, on the ground of newly discovered evidence, if it appear to be material and to have been discovered since the trial, and that no laches are imputable to the party; and he cited Vandervoort vs. Smith, 2 Caine's Cases, 155: Hollingsworth vs. Napier, 3 Caine's Cases, 182: Palmer vs. Mulligan, Id. 307: 15 Johnson, 293: 18 Johnson, 489. He said the court would decide upon the materiality of the evidence, and grant or deny the new trial accordingly; Halsey vs. Watson, 1 Caine's Cases, 24: Kendrick vs. Delafield, 2 Caine's Cases, 67.

J. HASKELL, with whom were Chalmers and Mc Clanahan, for the defendant, admitted, that merely by the bargain, the property in goods may be altered; Chitty on Contracts, 110, 111, and notes: Noy's Maxims, 88: but contended, that although a contract for the sale of goods be complete and binding in other respects, the property in them remains in the vendor, and at his risk, and he may retain

1

them on the vendee's insolvency, if any material act remains to be done before delivery, as to ascertain or distinguish the quantity or price, Chitty on Contracts, 112; Pleasants vs. Pendleton, 6 Randolph, 473, where the doctrine is elaborately discussed; 2 Starkie's Ev. 634, 638. In this case the negro was to be delivered and the money paid on the day after the bidding.

2. Upon the other point they said, that a new trial is never granted on the ground that a party did not give evidence which he might have produced, 1 Wilson, 98; Cook vs. Berry; nor will the court, on a motion for a new trial, hear an affidavit of any facts which might have been brought forward at nisi prius, Hope vs. Atkins, 1 Price, 143; 1 Eng. Exch. R. 67.

TURLEY, J., delivered the opinion of the court. Two questions are presented for consideration in this case. 1. Did the court below err in refusing to grant a new trial, because of misdirection to the jury? The plaintiff had exposed to public sale a lot of negroes for cash; at the sale the defendant was the highest and best bidder, and the negroes were struck off to him by the auctioneer who cried the sale. One of the negroes, named Lewis, was bought at the price of $680. None of the negroes were proven to have been delivered on the day of sale, nor that any part of the purchase money was paid. During the ensuing night Lewis died suddenly, and the defendant refused to pay the price bid for him.

On the trial the court charged the jury, "That in this case it was necessary to prove a delivery of the negro, actually or constructively, actually, as where the property is received by the vendee, or tendered by the vendor; constructively, as if a man contracts for property not present, but pays the consideration. That if there had been no delivery, or tender of the negroes, nor possession taken by the defendant, they would find for the defendant, otherwise for the plaintiff." This charge is erroneous, because it asserts that there can be no binding sale until there has been either a delivery or tender of the property sold, or until the defendant takes it into

Potter

V.

Coward.

April 9.

Potter

V.

Coward.

possession; and, as consequent thereon, that if the property should be suddenly destroyed before either of these things are done, that it is the loss of the vendor and not of the vendee.

It is not the delivery or tender of the property, nor the payment or tender of the purchase money, which constitutes a sale. The sale is good and complete so soon as both parties have agreed to the terms; that is, so soon as the vendee says, "I will pay the price demanded," and the vendor says, "I will receive it," the rights of both are instantly fixed. The vendee has a right to demand the thing sold immediately, but must pay the consideration. The vendor the right to demand the consideration money, but must deliver the property. If the vendee tender the purchase money and demand the property, he may maintain detinue or trover if the delivery be refused. If the vendor tender the delivery of the property, and demand his purchase money, he may have his action of debt or assumpsit, if it be refused. This shows most clearly that it is the contract of sale, which creates their mutual rights, and not the things to be done by the parties afterwards; for if it were not so, no tender of money by the vendee could give him the right to the property of the vendor, nor any tender of property by the vendor a right to the money of the vendee. It being the contract of sale then which changes the right to the possession of the property; it necessarily follows, that the right to the possession is changed from the moment the contract is made, and that any loss or injury to the property, after that period of time, is the loss of the vendee, whether this loss be partial or total. If the negro in dispute had lost a limb after the sale and before the delivery, no one would have doubted that it was the loss of the vendee, because a delivery could still be made; but inasmuch as he died, so that no delivery could be made, a different rule of construction is asked, though, as we think, without

reason.

In the case of Shaw vs. Smith, 9 Yer. 97; this court has said, in relation to rights acquired under a sheriff's sale, "that the contract was complete, so soon as the negroes were