the opinion of the court.
The principal question in this case, is, whether, in judgment of law, there was a delivery of the property. The purchase was made in the autumn of 1804; and the consideration money paid the following January, at which time, there is little or no doubt, that the beef was in good order. It remained, however, in the actual possession of the defendants, until the succeeding summer, when it was found to be damaged ; and on whom the loss *16ought to fall, is now the point in dispute. The pron r r r perty m the beef was so far transferred, on the payment of the consideration money, that it must be considered as remaining at the plaintiff’s risk. Blackstone, in his Commentaries, lays down the rule generally, that a bargain struck, and payment of the purchase money, vests the property of the chattel in the vendee. To illustrate his rule, he puts the case of a horse, dying in possession of the vendor, after the payment of the consideration, and the loss he says must fall on the vendee.* This, I apprehend to be the rule in all cases, on the sale of a specific chattel, where the identity of the article cannot bo controverted. The inference of law being, that a vendor is a mere-bailee, retaining the possession at the request of the vendee. The sale is not executed so as to vest the property in the vendee, without an actual, or a presumed delivery, and the latter is to be inferred from circumstances; as where there is a designation of the goods by the vendor to the use of the vendee,, the marking them, or making them up for delivery, the removing them for the. purpose of being delivered, and the like, (1 H. Black. 363.) In the present case, there is no controversy respecting the identity or designation of the beef sold, nor does it appear but that the plaintiffs purchased the whole which the defendants had in their store-house. The only testimony respecting the delivery, was that of James Giles, who swore, that at the time the money was paid for the beef, he understood it was to remain in the defendant’s slaughter-house, until it was shipped to New-York. Under these circumstances, I should suppose, that the inference of law would be, that it was at the risk of the vendee with respect to future damage, unless occasioned by the gross negligence of the vendor. If there was a delivery, the present.action is not maintainable, it being founded on a supposed breach qf contract, for non-delivery. But we are not *17authorised by the case, to direct a nonsuit to be entered, J . We can therefore, only award a new .tnaJ, with costs, to * abide the event of the suit,
New tria) granted.
2 Blk.Com 448.