Selby

The plaintiffand defendants being in the city of Sacra- mento, the former sells to the latter certain personal property, then in the town of Folsom, and upon the road between Folsom and Jackson. The defendants execute and deliver to the plaintiff their promissory note for the purchase money, and receive" an order upon the agent of th© plaintiff for the delivery of the properly. This action is brought upon the promissory note, and the defendants plead a failure of consid- eration. To sustain their plea, they prove that the property was at- tached by the creditors of the plaintiff, on the night of the day on which they purchased, and that under this attachment, the properly was finally sold, and that they never reduced it to actual possession. As to a portion of the property, it appears that the sheriff had attempt- ed to levy an attachment upon it, previous to the sale by the plaintiff to the defendants 5 but under my view of the law, it is not necessary to decide whether the acts of the sheriff amounted, in law, to a levy or not.

Between theparties there can be no doubt that the act of sale was perfected by the delivery of the note on the one hand, and the order for the property…