Byxbee

I dissent. I think that the judgment should he affirmed.

The plaintiff brought this action to recover the possession or value of eleven thousand raisin trays, more or less. The case was tried before a jury, and the verdict and judgment were in favor of defendant. The plaintiff moved for a new trial, which was denied, and has appealed from the judgment and order denying his motion.

Two propositions are relied upon and urged as grounds for a reversal. They are: (1) That the denials in defendant’s answer were not sufficient to raise an issue as to plaintiff’s right to recover possession of the property sued for; (2) that *546 the purchase of the said property by defendant was not accompanied by an immediate delivery, and followed by an actual and continued possession thereof, as required by section 3440 of the Civil Code, and hence it was subject to seizure by a creditor of the seller. The complaint alleges that on the twenty-fourth day of June, 1893, the plaintiff was the owner and entitled to the possession of the personal property before mentioned, and that on said day the defendant, without the consent and against the will of the plaintiff, took said property from the possession of plaintiff and still retains the same. The answer…