Appeal from the District Court of the Twelfth Judicial District.

This was an action of replevin, to recover a kiln of bricks. The bricks were seized by the defendant, as constable, under an attachment, and subsequently sold under an execution issued out of a Justice’s Court, upon a judgment in favor of William Waite, and against Lander Loring.

The material facts, as found by the referee, (his report being the agreed statement on appeal,) are as follows:

In the fall of 1856, one Lander Loring rented of Peter Webster a portion of his brick-yard on Mission Creek, for the purpose of making bricks; that Loring made a kiln of bricks upon said yard, containing about 150,000 bricks. After the bricks were burnt, they remained in the kiln, on Webster’s premises, and Loring left them in the exclusive charge and possession of Webster, with directions to sell the same for Loring’s benefit. Afterwards, on the second day of January, 1857, Loring made and delivered to plaintiff a bill of sale of the bricks, which is in the following words :

“ Bicharás & Brother, “ San Francisco, January 2, 1857

“ Bought of Lander Loring, one kiln of bricks, containing one hundred and fifty thousand, for §1200.

“ Received payment,

Lander Loring.”

The said hill of sale was given to secure the sum of $500, then due from Loring to plaintiff. There was no change of possession under this bill of sale, and the bricks would have been lessened in value, by breakage, in a removal. In the latter part of March, 1857, Loring, with the approbation of plaintiff, informed Webster of the sale to plaintiff, and directed him to pay plaintiff the amount of his claim out of the proceeds arising from the sale of bricks. Webster acknowledged plaintiff’s claim, and afterwards sold some of the bricks, and agreed to account to plaintiff therefor. On the sixteenth day of March, 1857, there were about 90,000 bricks in the kiln unsold, which the defendant, as constable, seized under an attachment in favor of Waite, and against Loring; judgment was subsequently obtained, execution issued, and the bricks sold by defendant, as constable, to satisfy the same. The referee also finds that Waite knew of plaintiff’s claim when he commenced his action by attachment.

As a conclusion of law, the referee found that the bricks were rightfully seized and sold by defendant, and that defendant is entitled to a judgment.

Judgment was entered for the defendant. Plaintiff moved for a new trial, which was denied, and he appealed to this Court.