CHANGE OF POSSESSION. 71 



they collected bills for him, made out in his name, and the 

 execution creditor of the seller and others also had notice of 

 the sale and change of possession, the sale was held to be valid 

 as against the execution creditor.'^ But where the cattle, 

 after the sale, were driven to another place under the charge 

 of the seller, who purchased fodder for them in his own name 

 but for the purchaser's benefit, this was not a change of actual 

 possession as against the seller's creditor.* And where the 

 purchaser's agent went among the herd, cutting out a certain 

 number and saying that the rest were as called for in the con- 

 tract, this was not a sufficient delivery.® 



The sale of a given number of cattle running in a herd is- 

 an executory contract and does not apply to any particular 

 cattle until the number sold have been separated. The bill 

 of sale giving the purchaser the right to select and take im- 

 mediately gives him the right, after demand and refusal, tO' 

 recover possession of the entire herd in an action at law and 

 then to select the number purchased and return the residue 

 to the seller.i° 



An agreement that one of the sellers should be hired by the 

 purchaser "to drive the team and have possession and control 

 until they were paid for, and as long thereafter as they could 

 agree," was held to give possession to the seller as a driver 

 only, and not as owner.^^ So where A. agreed to buy all of 

 B.'s spring lamb, B. to pasture them till they were called for, 

 it was held that a loss, not B.'s fault, while the lambs were 

 being pastured, fell on A.^^ But where one agrees to buy a- 

 horse for cash and to take him within a fixed time, and rides 

 the horse and gives directions as to his treatment, but leaves 

 him in the seller's possession for a still further period with the 



' Janney v. Howard, 150 Pa. St. 339. 



' Harris v. Pence, 93 la. 481. And see Henderson v. Hart, 122 Cal. 332. 



° Slaughter v. Moore (Tex. Civ. App.), 42 S. W. Rep. 372. 

 " McLaughlin v. Piatti, 27 Cal. 451. 

 " Barnhill v. Howard, 104 Ala. 412. 



" Bertelson v. Bower, 81 Ind, 512. And see Morgan v. Miller, 62 

 Cal. 492. 



