#### George W. Tuxworth *versus*Abel Moore.

A mare belonging to G. was in the livery stable of S., who had a lien on her for *her*keeping, and G. having sold her to the plaintiff, G. and the plaintiff both, on the day of the sale, wrote to S. informing him of it, and requesting him to keep her for the plaintiff after that time; which letters were duly received by S. A few days after the receipt of the letters, the mare was attached as the property of G., S. in the mean time not having written to G. or the plaintiff, but being ready to deliver her up to the plaintiff at any time. When the mare was attached, S. refused to let the officer take her, unless he would pay the claim which he had for her keeping, which the officer accordingly paid. In an action of trover brought by the plaintiff against the attaching officer, held, that the property passed not only as between G. and the plaintiff, but as against G.’s creditors, and therefore that the action might be maintained; *held*also, that in this action the amount paid by the officer to remove S.’s lien was not to be deducted from the value of the mare, in ascertaining the damages, as this was a claim against G., not against the plaintiff.

This was an action of trover to recover the value of a mare. The defendant pleaded the general issue, and a special justification stating that he, being a deputy sheriff, attached the mare as the property of Isaac W. Goodrich on a writ against him.

The case was tried before *Wilde*J.

Goodrich, who was a witness for the plaintiff, testified that he formerly owned the mare, and that about the first of March, 1829, he put her to be boarded at the livery stable of William Shephard in Concord ; that he had several times conversea with the plaintiff about selling him the mare, and on Aprd 30th, *3531829, he sold her to the plaintiff for $150, taking the plaintiff’s note for that amount payable in book-binding, the plaintiff being a book-binder ; that on the same day he wrote a letter to Shephard informing him of the sale, and that he, Goodrich, would be accountable for the keeping to that date ; and that the plaintiff on the same day wrote a letter to Shephard, informing him that he had made the purchase, and requesting him to keep the mare on his, the plaintiff’s, account.

Shephard testified that he received the letters the day after their date ; that the mare was attached by Moore on May 4th, 1829, and was sold a few days afterwards on the writ; that she was bid in for Tuxworth for $77-50. Shephard testified, that at the time of the sale, there was due to him about $ 34 for keeping the mare from the time Goodrich first put her to board with him ; and that he considered that he had a right to keep possession of her to secure payment of that sum ; and that he refused to let Moore take her, unless he would pay or become responsible for it; and that Moore accordingly paid it to him. He also testified, that had Tuxworth asked him for the mare he should have delivered her to Tuxworth, taking Goodrich’s promise to pay what was due for keeping while she belonged to Goodrich.

The defendant’s counsel contended, that as no visible or notorious change took place in the possession of the mare, in consequence of the sale, and neither Goodrich nor Tuxworth had seen her or Shephard, who had her in keeping, so as to give or receive possession or delivery of her, before the attachment, the property did not pass as against Goodrich’s creditors. He also contended, that the amount due for keeping the mare, which the defendant had paid, and for which Shepard had a lien, should be deducted from the value by the jury, if they found for the plaintiff

But the judge instructed the jury, that the letters of Goodrich and Tuxworth, if they came into Shephard’s hands before the attachment, were a sufficient delivery and passed the property in the mare to the plaintiff; and also that they should not deduct from the value of the mare, any sum due for her keeping while she was Goodrich’s property'.

*354The jury having found a verdict for the plaintiff, the defendant moved for a new trial, on account of the instructions given to the jury.

*Morey,*for the defendant,

contended that there was no delivery of the mare to the plaintiff; that the mere receipt of the letters by Shephard could not pass the property, as he had not answered them or done any other act to effect a change of the property. *Lanfear*v. *Sumner,*17 Mass. R. 110; *Shumway*v. *Rutter,*7 Pick. 56.

*Peabody, contra,*

cited *Hanson*v. *Meyer,*6 East, 614; *Greaves*v. *Hepke,*2 Barn. & Ald. 131; Long on Sales, 154 *et seq.*[Rand’s ed. 268 *et*seq.]; *Spear*v. *Travers,*4 Campb 251 ; *King*v. *Meredith,*2 Campb. 639 ; *Dutton*v. *Solomonson,*3 Bos. & Pul. 584; *Elmore*v. *Stone,*1 Taunt. 458; *Lucas*v. *Dorrien,*7 Taunt. 279.

fAEKER C. J.

delivered the opinion of the Court. The only question is, whether the sale by Goodrich to the plaintiff was complete before the attachment by the defendant. It is objected that there was no delivery, and there was none in point of form ; but if the contract of sale was *bond fide*and for a valuable consideration, which we take to have been settled by the jury, then, if there was a symbolical delivery or if the plaintiff came to the possession in virtue of the contract, the property passed, not only between vendor and vendee, but against everybody. On the day of the bargain letters were written by the plaintiff and by Goodrich to Shephard, in whose custody the mare was for keeping. The letter from Goodrich informed Shephard that he had sold the mare to the plaintiff, who would be accountable for the keeping after that date, and the letter from the plaintiff informed him that the plaintiff had purchased her and would be answerable for the keeping. Shephard testified that he received these letters four days before the mare was attached, and that although he considered that he had a right to retain the mare for the keeping that was due, he should have delivered her to the plaintiff if he had called or sent for her. From this the jury had a right to infer, that the property was changed, and that Shephard became the keeper for the plaintiff. This is quite equivalent to a formal *355or symbolical delivery, and therefore was an execution of the contract of sale.1

_ The instruction of the judge, as reported, that the letters, if they came to hand, were a sufficient delivery, if it was not grounded upon the testimony of Shephard also, might be questionable ; but he informs us, that it had reference to that testimony, and no exception has been made to it as standing independent of the evidence.

In regard to the claim of a reduction of damages, on account of the price of keeping paid by the officer to remove the lien, the verdict is right; for the plaintiff was not indebted for the keeping before his purchase. The officer must look to Goodrich for reimbursement.

*Judgment according to verdict.*

1

 See *Whitaker*v. *Sumner,*20 Pick. *405; Fettyplace*v. *Dutch,*13 Pick. 388*Whipple*v. *Thayer,*16 Pick. 27, 28; Chitty on Contr. (4th Am. ed.) 308 et seq.; *Chapman*v. *Searle,*3 Pick. 38 ; *Pleasants*v. *Pendleton,*6 Randolph, 473; *Smith*v. *Surmane,*9 Barn. & Cressw. 570; *Carter v. Touissant,*5 Barn. & Ald. 855; 2 Kent’s Comm. (3d ed.) 500 *et seq.; Denny*v. *Willard,*11 Pick. 519.