William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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the case of the insolvency of the purchaser; and that right as-
sumes that the vendor has divested himself of the legal title, and
that the property has passed to the vendee, while the actual pos-
session is in some third person in its transit to the vendee.

(5.) Delivery of goods to a servant or agent of the purchaser (a),
or to a carrier or master of a vessel, when they are to be sent by
a carrier, or by water, is equivalent to delivery to the purchaser:
and the property, with the correspondent risk, immediately vests
in the purchaser, subject to the vendor's right of stoppage in
transitu (&). A delivery by the consignor of goods, on board of a
ship chartered by the consignee, is a delivery to the consignee (c);
and the rule is the same, if they were put onboard a general ship
for the consignee (d). The effect of a consignment of goods by
a bill of lading, is to vest the property in the consignee. A de-
livery to any general carrier, when there are no specific direc-
tions out of the ordinary usage, is a constructive delivery to the

vendee; and the rule is the same whether the goods be
[ *500] sent from one inland place to another, or beyond sea. *The

delivery to the agent must be so perfect as to create a
responsibility on the part of the agent to buyer (e); and if the

cellent treatise on the contract of sale, (Traits du Control de Vente,) is founded
on the civil law. as illustrated by the French civilians, and adopted i nd regu-
lilted by the French law. Toullier has also written largely ton the law of
wn tracts {Droit drily vol. vi. & vii!) as existing under the new civil code,
and these two distinguished civilians are equally admirable for their logic
and simplicity.

{a) Leeds v, Wright, 3 Bos. d- Pull, 320. Dixon v. Baldwin, 5 Eant's Rep.

{b) Evans V. Martell, 1 Lord Eaym, 271. Dntton r. Solomonson. 3 B09. ^
Jhtll. 582. Dawes v. Peck, 8 Trrm Hep. 330. Ludlows r. Browne & Eddy. I
Joh7i9. Rep. 15. Summerill r. Elder. 1 Binney's Rep. 106. GrifiSth v. Ingle-
dew, 6 Serff. <fc Rnwlf, 429. King r. Meredith, 2 Campb. Rep. 639. Copeland
r. Lewis, 2 Sfarkie's N. P. Rep. 33.

(c) Inglis r. Usherwood, 1 East's Rep. 515. Fowler r. M'Taggart, 7 Term
Rep. 442. Bothlingk v. Inglis, 3 Ea^rs Rep. 395.

((/) Coxe r. Harden, 4 AW« Rep. 211. Brown r. Hodgson, 2 Oampb. Rep.
36. Gi-oning r. Mendhani, 5 Maule <l& Selw. 189.

(e) Buckman v. Levi, 3 Campb. Rep. 414.



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^oods be forwarded by water, the vendor ought to cause them to
be iDsnred, if sach has been the usage (a); and he ought, in all
cases, to inform the buyer, with due diligence, of the consign-
ment Until the party, receiving a consignment or remittance
made on account of the consignor, has done some act recognizing
the appropriation of it to a particular specified purpose, and the
party claiming under the appropriation had signified his accept-
ance of it, so as to create a privity, the property and its pro-
ceeds remain at the risk and on the account of the remitter or
owner (fe).**

(6.) Symbolical delivery will, in many cases, be sufficient and
equivalent, in its legal efiTects, to actual delivery. The delivery
of the key of the warehouse in which goods sold are deposited, or
transferring them on the warehouseman or wharfinger's book to
the name of the buyer, is a delivery sufficient to transfer the prop-
erty (c). So, the delivery of the receipt of the storekeeper for
the goods, being the documentary evidence of the title, has been
held to be a constructive delivery of the goods (d). There may
be a symbolical delivery when the thing does not admit of actual
delivery. The delivery must be such as the nature of the case
admits (e). We have a striking instance of this in the Pan-
dects (g), where the delivery of wine is held to be made by the
delivery of the keys of the wine cellar; and the consent of the

(a) Cothay r. Tute, 3 Ibid. 129.

lb) Tiernan r. Jackson, 5 Peters' U. 8. Rep. 580.

(c) I^rd Hardwicke, 1 Atk. Rep. 171. Lord Kenyon, 7 Term Rep. 71. 1
EoMt's Rep. 194. Harman r. Anderson, 2 Campb. Rep. 243. PotMer, Traite
du Droit de Propriete, No. 199. Dig. 41, 1, 9, 6.

{d) Wilkes A Fontaine r. FerrM, 5 Johns. Rep. 335.

(e) Ijord Kenyon, 1 East's Rep. 194. *

{a) Dig. 41, 2, 1, 21.

* See note 50 ante. The vendor is not bound to send the goods to the pur-
chaser, he performs his part of the contract by placing the goods or leaving
them at the purchaser's disposal, so that he can remove them without oh-
struction. Means r. Williamson, 37 Me. 556; Bemis r. Morrill, 38 Vt. 153,'
White V. Welsh, 2 Wright Pa. 396; Ingalls v. Herrick, 108 Mass. 351 ; Hardy
r. Potter, 10 Gray, 89; Marsh v. Rouse, 44 N. Y. 643; Ropes v. Lane, 11
Allen. 591; Beller r. Block, 19 Ark. 566. It would seem that a purchaser
may. when the goods are on the seller's property, and this is the place from
whence the purchaser is to take them, enter upon his premises for the pur-
]iose. McLcKxl r. Jones, 105 Mass. 403. .As t4> the vendor*8 duty to insure
the goods when delivered to a carrier, see Clarke r. Hutchins, 14 East, 475;
Taylor v. Cole, 111 Mass. 363: Buckman v. Levi, 3 Cam. 414. And the ven-
dor is bound to give the purchaser an opportunity of examining the goods in
order to discover whether thev are accordi ng to contract. Croninger v. Crocker,
62 N. Y. 151; Isherwood v. Whitmore, 11 M. & W. 347; Boothby r. Scales,
27 Wis. 626.


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party apon the spot is sufficient possession of a colnmn of granite,
which, by its weight and magnitude, was not susceptible
[ * 501 ] of any other delivery; and possession *was taken by the
eyes, and the declared intention. In the sale of a ship,
or goods at sea, the delivery must be symbolical, by the delivery
of the documentary proofs of the title; and the delivery of the
grand bill of sale is a delivery of the ship itself (a). A bill of
sale of timber, and materials of great bulk, lying on the banks of
a canal, or marking the timber, has been held to be a delivery suf-
ficient to make the pk)ssession follow the right It was as com-
plete a delivery and possession as the subject matter reasonably
admitted (6). Taking a bill of parcels, and an order from the
vendor on the storekeeper for the goods; and going and marking
them with the initials of one's name, has been held a delivery (c).
Taking a bill of parcels and the order on the warehouseman, and
paying the price, has been held to be a complete and executed
contract, so as to pass the property and the risk of the articles
sold (d). The mere communication of the vendor's order on a
wharfinger or warehouseman for delivery, and assented to by him,
passes the property to the vendee (e). Even the change of mark
on baled of goods in a warehouse, by direction of the parties, has
been held to operate as an actual delivery of the goods (g), A
delivery of part of a parcel of articles selected and purchased
without any objection at the time as to the delivery of the residue,
takes the case out of the statute of firauds as to the whole of
the goods BO purchased (h). The case would be different if the
purchaser paid for the articles delivered, and left the residue un-
delivered and wholly unpaid for (»). If the vendor takes the

(a) Atkinson v. Maling, 2 Term Rep. 462.

(6) Man ton v. Moore, 7 Term Rep. 67. Stovald r. Haghes, 14 £(uf8 Rep.
308. Videri trahen traditas qnas emptor signaMaet. Dig, 18, 6, 14,1.

(c) Hollingsworth v, Napier, 3 Caines^ Rep. 182.

(d) Pleasants r. Pendleton, 6 Randolph's Rep. 473.

(r) Lucas v. Dorrien, 7 Term Rep. 278. Searle v. Reeves, 1 Esp. Rep. 59ft.
Bentall v. Burn, 3 Bamw. <fc Creta. 423.

[g) Lord Ellenborough, 14 East's Rep. 312. The selecting and markin^rot
sheep, in the possession or B., who i.s desired to retain possession of them for
the vendee, was held to be a sufficient delivery to complete the sale, and pass
the property. Barney r. Brown, 2 Vermont Rep. 374. 1 BeJPs Oom. 176.
Campbell r. Barry, Ihid. The Vermont and the Scotch decisions were founded
on the same circumstances.

(h) Shirley v. Hayward, 2 H. Blacks. 509. Baldey r. Parker, 2 B. lit Cress.
37. Elliott r. Thomiis, 3 Mees. A Wds. 170. Mills r. Hunt, 20 Wendefl,

(0 Walworth, Ch., in Mills r. Hunt, 20 WendeU, 434.



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vendee within sight of poaderous articles, snch as logs lying
within a boom, and shows them to him, it amounts to a delivery,
though the vendee should suffer them to lie within the
boom, as is usual with such property, *until he have ooca- [ * 502 ]
sion to use them (a). Delivery of a sample has been suffi-
cient to transfer the property, when the goods could not be actu-
ally delivered until the seller had paid the duties; that fact being
known and understood at the time, and when the buyer accepted
of the sample as part of the quantity purchased (6). The de-
livery must always be according to the subject matter of the de-
livery, and the property must be placed under the control and
power of the vendee (c).

• Cutting of the spills of wine casks, and marking the initials of
the purchaser's name on them, has been held an incipient delivery,
sufficient to take the case out of the statute (d). So, if the pur-
chaser deal with the commodity as if it were in his actual posses-
sion, this had been held to supersede the necessity of proof of
actual delivery (e). When a purchaser at the merchant's shop,
marked the goods which he approved of, and laid them aside on
the counter, and went for a porter to remove them, without re-
ceiving a bill of parcels, or stipulating a time of payment, or ten-
dering the merchant's note which he was to offer in payment, it has
been held, that the property in the goods was not changed by that
transaction (g). Since that decision, a more relaxed rule has, at
times, been adopted; and it has been held, that on the
purchase of a horse, without memorandum, payment *or [ * 508 ]
actual delivery, the verbal request of the buyer that the
vendor keep the horse in his possession for a special purpose,
and the consent on the part of the vendor, amounted to a con-
structive delivery, sufficient to take the sale out of the statute (h).

(a) Jewcttt;. Warren, 12 Mam, Rep, 300.

(() Hinde r. Whitehouse, 7 EfwCn Rep. 558. But generally, as a snbsti-
tnte for actnal or constrnctive delivery, the taking of sanaples has no effect.
Hill r. Buchanan, cited in a note to 1 BeWs Com. 182.

(c) 2 N. H. Uep. 318. Incorporeal rights are not susceptible of actnal de-
livery, and a quasi-possession is taken, when the use commences, as a right
of wav. So, the delivery of a debt, or chose in action, consists in the assign-
mcnt'of it with notice. Poihier, Tmiik du Droit de PropriHe, No. 214, 215.

(d) Anderson v. Scott, 1 Camp. Rep. 235, n.

(e) Chaplin v. Rogers, 1 EasVs Rep. 192. Blenkinsop v. Clayton, 1 Moore's
Rep. 328.

(g) Dutilk V. Ritchie, 1 Ball. Rep. 171. See, also, to the same point, Baldey
c. Parker, 2 Bamw. dt Qrem. 44.

(h) Elmore v. Stone, 1 Taunt Rep. 458.



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That case has since been qnestioned, as carryiD^ the doctrine of
coQstruciive delivery to the ntmost verge of safety; and later cases
seem to have resumed a stricter doctrine, and qualified the infer-
ence to be drawn from the acts of the bayer. The presumption
of a delivery is not readily allowed, when there has been none in
fact; for it goes to deprive the seller of the possession of his
lien, without payment (a). The purchase of a part of a heap of
grain or of other goods in bulk, if the same be not measured off
and separated at the time, is not valid, even though the seller
afterwards measured it off and set it apart for the vendee (6). On
the other hand, probity in dealing, the interests of commerce, and
the variety, extent, and rapidity of circulation of property, which
it has introduced, require that delivery should frequently be pre-
sumed from circumstances; and a destination of the goods by the
vendor to the use of the vendee, the marking them, or making
them up to be delivered, or the removing them for the purpose of
being delivered, may all entitle the vendee to act as owner (c). But
the presumption fails when positive evidence contradicts it, -as in
the case of a refasal on the part of the vendor to part with the

goods until payment (d); and on the part of the vendee
[ * 504 ] to take the goods when inspected («); * or the delivery

be of a sample, which is not part of the bulk of the com-
modity sold. The good sense of the doctrine on the subject,
;would seem to be, that in order to satisfy the statute, there must
be a delivery of the goods by the vendor, with an intention of
vesting the ri^ht of possession in the vendee, and an actual ac-
ceptance by the vendee, with an intention of taking possession as
owner (gf).*

(a) Tempest v. Fitzgerald, 3 Bam. <£ Aid. 680. Garter v. Tonssaint, 5 IbitL
855. Dole v. Stimpson, 21 Pick, 384.

{b) Howe V. Palmer, 3 Bamw. dt Aid. 3QI, Salter v, Knox, 1 BelPa Com.
181, n. S. P. Eagle v. Eichelberger, 6 Watts, 29. See supra, p. 496, S. P.

(c) Lord Loughborough, 1 H. Blacks, Rep. 363. 1 Campb. N. P. B. 233.

{d) Goodall r. Skelton. 2 H. Blacks. Rep. 316.

(e) Kent v. Huskinson, 3 Bos. A Pull. 233. The delivery to the carrier
will not conclude the vendee, and be construed into an actual acceptance
of the goods, so long as the vendee retains the right of inspection upon
the ultimate delivery, and to object to either the quantity or quality of the
goods. Astley v, Emery, 4 Maule dt Sdw. 264. Hanson v. Armitage, 5
Barnw. ifr Aid. 559.

iff) Phillips r. Bistolli, 2 B. 4it Oressw. 511.

''^ Where there is a symbolical delivery of the goods, the article delirered
or representation used must be done with the intention to transfer the title.
Cartwright v. Phoenix, 7 Cal. 281 ; Clark v. Draper, 19 N. H. 419. As to
constructive delivery of laiige articles, see Haydeu v. Demets, 53 N. Y. 426;



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If the subject matter of the contract does not exist in rerum
natura, at the time of the contract, bat remained to be thereafter
fabricated oat of raw materials, or materials not put together, it
is consequently incapable of delivery, and not within the statute
of frauds; and the contract is valid without a compliance with -
its requisitions (a). The case rests entirely on contract, and no
property passes, until the article is finished and delivered (6).*'

(a, Towers v. Osborne, Sir. 606. Groves v. Buck, 3 MaiUe <t Setw. 178.
Littledale, J., Id Smith v. Surman, 9 B. dt Cress. 561. Mixer v, Howarth,
21 Pick. 205.

[b] Mnclow V. Mangles, 1 Taunt Rep. 318. In the Scotch law, if goods
be pni-chased from a manafactarer, before some necessary operation of his
art be completed, as if one buys a ship on the stocks, or a vase in the hands
of a goldsmith, unfinished, or cotton goods, upon the loom, in a state ot
preparation, and the price be paid, there is held, in these cases, to be a con-
structive delivery, sufficient to pass the property; and this was the doctrine
of the civil law. 1 BelVs Cotn. 176, 178. This may be very reasonable doc-
trine; but the English rule, according to the case in Taunton, is more strict,
and it requires the chattel to be finished, and in a state lor delivery, and
to be delivered, according to the nature of the case, to change the prop-
eity. In Wood v. Russel, 5 Bamw. <t Aid. 942, Ch. J. Abbott, laid down
the principle, that where a ship is built upon special contract, and por-
tions of the price were to be paid according to the progress of the work,
those payments appropriate specifically to the purchaser the vessel so in
progress, and vest the property as between him and the builder, so as to
entitle him to insist on the completion of that very vessel. But the court
of K. B.. in Clarke «. Spence, 4 Adofph. dt Ellis, 448, admitted with reluc-
tance, the authority for this new principle, and said that the general and
prior rule of law was, that under a contract for building a vessel, or any
thing not existing in specie at the time of the contract, no property vested
in the purchaser during, the progress of the work, even though the precise

Bethel Steam Mill Co. v. Brown, 57 Me. 9; Jewett r. Warren, 12 Mass. 200;
Montgomery p. Hunt, 5 Cal. 226. The .transfer of a bill of lading duly en-
dorsed will be a good delivery. Pratt v. Parkman, 24 Pick. 42; McKee v.
Gracelon, 60 Me. 167. Aliter without endorsement. Stone r. Swift, 4 Pick.
389. And see as to transfer by endorsements, Gardner v. Howland, 2 Pick.
509; Gibson v. Stevens, 8 How. (U. S.) 384; Dixon v. Buck, 42 Barb. 70;
Bringley v. Spring, 7 Greenl. 241; Pratt «. Parkman, uhi supra] Tucker t>.
Buffington, 15 Mass. 477; Veazie v. Somerby, 5 Allen, 280. As to the de-
livery of a key to premises. Rickerv. Cross, 5 N. H. 571; Calkins v. Lock-
wood, 17 Conn. 164; Vining r. Gilbreth, 39 Me. 496. As to marking eoods.
Chase v. Willard. 57 Me. 157; Walden v. Murdock, 23 Ca). 540; Strauss v.
Minzesheime^, 78 111. 482; Hatch v. Lincoln, 12Cush. 31. As to delivery of part
in the name of the whole. ShurtlefTv. Willard, 19 Pick. 202; Boynton v.
Veazie, 24 Me. 286; Phelps v. Cutler, 4 Gray, 137; Chappel v. Marvin, 2
Aiken, 79.

** See, further, Williams v. Jackman, 16 Gray. 517; Elliott v. Edwards, 6
Vroom, 265. The title will not pass- without an acceptance of the article
express or implied. Moodv v. Brown, 34 Me. 109; Gamage r. Alexander.
14 Texas, 414; Brown v. Foster, 113 Mass. 136; Sutton v. Campbell, 2
Thomp. Sc C. (N. Y.) 595; Bennett r. Piatt, 9 Pick. 558; Johnson v. Hunt.
11 Wend. 139; Rider v. Kelley, 32 Vt. 268; Mclntyre v. Kline, 30 Miss. ,361.
See, however, Goddard v. Binney, 115 Mass. 450; Shawhan t*. Van Nest, Sup.
Crt Ohio. 15 Am. Law Reg. (N. S.) 153.



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If the buyer nnreasonablj refuses to aooept of the article sold,
the seller is not obliged to let it perish od his hands, and mn
the risk of the solvency of the buyer. The usage on the neglect
or refusal of the buyer to come in a reasonable time, after notice,
and pay for and take the goods, is for the vendor to sell the same
at auction, and to hold the buyer responsible for the deficiency

in the amouqi of sales (a).^
[ ♦ 505 ] * (7.) The place of delivery is frequently a point of

consequence in the construction of the contract of sale.
If no place be designated by the contract, the general rule
is, that the articles sold are to be delivered at the place where
they are at the time of the sale. The store of the merchant, the
shop of the manufacturer or mechanic, and the farm or gran-
ary of the farmer, at which the commodities sold are deposited
or kept, must be the place where the demand and delivery are to
be made, when the contract is to pay upon demand, and is silent as

to the place.** This appears to be the general doctrine
[ * 506 ] on the subject (6). Pothier * distinguishes between

mode Rnd time of payment were fixed, nor until the thing was delivered,
or ready for delivery, and approved of by the parchaser, and that the pur-
chaser was not bound to deliver the identical article, if another answered
the specification in the contract.

(a) Sands & Crnmp v. Taylor .& Lovett, 5 Johns. Rep. 395. Adams r.
Minick, cited in SSerg. <k Rawle, 32. Girard «. Taggart, 5 Ibid. 19.

(6) Pothier, Traiie des. Obiig. No. 512. Traite du Contrai de Venle, No. 45.
46, 51, 62. Code Napoleon, n. 1609. TouUier, Droit Civil Frtin^in, tome
vii. n. 90. Civil Code of Louisiana, art. 2469. Adams r. Minick, cited
in Wharton'' 8 Dig. of Penn. Cases, tit. Vendor, n. 76. Lobdell v. Hopkins. 5
Cotoen^s Rep. 516. Chipman^s Essay. on (he Law of Contracts, 29, 30. Goodwin
V. Holbrook, 4 WendelVs Rep. 380.

The Code Napoleon, in respect to the contract of sales, and in respect to all
other contracts, seems to be, in a great degree, a concise abridgment or snm-
ranry of the writings of Pothier. M. Do pin, in a dissertation prefixed to the
edition of works of Pothier. published at Paris in 1827, says, that three-lburths
of the Code Civil have been literally extracted from Pothier's treatises. The
utility of the latter, and their great merit, in learning, perspicuity, and ac-
curacy of illustration, are far from being superseded or eclipsed by the aim-
pi icity, precision, and brevity of the code. The aid of the French civilians
of the former school has been found as indispensable as ever. The Code Na-
poleoH and Code du Commerce^ deal only in general rules and regulations.
They are not sufficiently minute and provisional, to solve, without judicial
discussion, the endless questions that constantly arise in the business of life.
The citation of adjudged cases, M. Dupin says, is so very common in tiie French
courts, that there seems to be an emulation who shall cite the most. (Juris-
prudence des Arrets, Pref.) Between the years 1800 and 1827, there were
upwards of two hundred original treatises and compendiums, upon different
titles of the law, published in France. M. TouUier has undertaken a oom-

"'See note 51 ante.

«See Barr r. Myers, 3 Watts & Sergt. 299; Rice v. Churchill, 2 Denio, 145;
Miles V. Roberts, 34 N. H. 253; Craft v. Hartz, 11 Miss. 109.



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contracts for a thing certain, as for all the wine of the vintage
of the vendor, and a contract for any thing indeterminate, as
a pair of gloves, a certain quantity of corn, wine, &c. In the
former case, the delivery is to be at the repository where the wine
was at the time of the contract; and this is reasonably supposed
to be the understanding of the parties, as the purchaser would
then be able to see that he had the whole quantity, agreeably to
the contract. In the latter case, the property is to be delivered
at the debtor's place of residence, unless the parties lived near
each other, and the thing be portable; in which case the place of
payment would be the creditor's residence (a). The common
law on the subject of the delivery of specific articles which are
portable, makes a distinction between the contract of sale, and
the contract to pay a debt at another time in such articles. We
have seen, that in the contract of sale the delivery is to be at
the place where the vendor has the article; but in the other case,
the weight of authority would seem to be in favour of the rule,
that the property was to be delivered at the creditor's place of
residence, though the cases on the subject are not easily reconcila-
ble with each other.

Lord Ooke lays down the rule (6), that if the contract be to
deliver specific articles, as wheat or timber, the obligor is not
bound to carry the same abroad, and seek the obligee (as in the
case of payment of money), but he must call upon the obligee be-
fore the day, to know where he would receive the articles, and
they must be delivered, or the obligor must be ready and able to
make the delivery, at the place designated by the obligee. This
doctrine was admitted in the case of Aldrich v. Albee (c),
in which it was* declared, that if *do place be mentioned [ * 507 ]
in the contract, to deliver specific articles (and which in

mentary npon the French Civil Law. according to the order of the Code^ which
has already extended to twelve volumes; and, as far as I may he permitted
to judge, from a very imperfect knowledge of the French law, he seems to
rival even Pothier himself, in the comprehensiveness of his plan, and in the
felicity of its execution.

(a) Pothier, Traiie des Oblig. No. 512, 513.

(b) Co. Xt«. 210, h.

(c) 1 Greenleaf^s Rep. 120. In the subsequent case, in the same court, of
Bixby V. Whitney, 5 Ibid. 192, it was declared to be well settled, that where
no place is appointed for the delivery of specific articles, the obligor must go
before the day of payment to the obligee, and know what place he will ap-
point to receive them. The first act is to he done by the debtor, and if he
omitA to do it, he is in default. See, also, Mingus v. Pritchet, 3 Dev. N. C.
Eep. 78, S. P.

42 VOL. II. KENT. 657


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thai case were hay, bark and shingles), the creditor had the right
to name the place. It is evident, however, that this role most
be received with considerable qualification, and it will depend, in

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