Ashe

Appeals from the judgment in an action of claim and delivery and from the order denying a new *182 trial. The action was for the recovery of certain race horses, or their value in case a delivery could not be made, the horses having been taken by defendant from the possession of the plaintiff after the sale of them to him by one Kelly.

The defendant denied the allegations of the complaint, and averred that he was the owner of the horses, and that he was indebted to one M. J. Kelly in the sum of four thousand seven hundred and twenty-one dollars and fifty cents. To secure this indebtedness he executed to Kelly bills of sale of the horses, which bills of sale, absolute in form, were understood by defendant and Kelly to be and were in fact mere evidences of a pledge of the horses as security for the debt; Kelly thereafter wrongfully and without notice to defendant executed a bill of sale of the horses to plaintiff. Plaintiff took possession of the horses from Kelly, without payment of any consideration and with full knowledge of the transaction between Kelly and defendant. Defendant tendered to/ Kelly and to plaintiff the amount of the said in-1 debtedness. Kelly refused to accept…