Dorman

This action was brought to recover certain personal property (eight horses and forty tons of hay), or the value thereof. The defendant appeals from the judgment in favor of plaintiff, and from an order denying his motion for a new trial. The defendant, a constable, justifies the taking and detention of the property by virtue of a writ of attachment issued by a justice of the peace at suit of Williams against Thurber and wife, alleging that the horses and hay *622 were the property of Thurber and wife, and denying that plaintiff was the owner or entitled to the possession thereof. Plaintiff claimed title to the property by purchase from Thurber and wife, Thurber being her son in law. The purchase was evidenced by a bill of sale executed by the husband alone, as follows:

The appellant contends that there never was any delivery of the property described in the bill of sale, and consequently that the transfer was not followed by any actual change of possession, and is therefore void as against Williams, the attachment creditor; and I think this point is well taken. Since it appears that, at the time of execution of the bill of sale, Thurber and wife had the possession and control of…