Lilienthal

This action is to recover a certain stock of goods formerly owned by Phillips Bros. & Co. There was a trial by jury, and the verdict and judgment were for plaintiffs. Defendants appeal from the judgment and from an order denying a new trial.

The goods in question were attached at the suit of creditors of Phillips Bros. & Co., and were held by the sheriff under the attachment for several weeks. While the goods were thus in possession of the sheriff they were transferred by Phillips Bros. & Co. to the plaintiffs, who were trustees for all their creditors except the defendant Orman, who afterward attached the goods as the property of Phillips Bros. & Co., and Orman and Ballou, the sheriff who served Orman’s attachment, are the defendants and appellants in this action.

A thorough examination of the record in this case shows that there is really only one'question on this appeal to be determined, and that is whether the following instruction given by the court to the jury was correct or erroneous: “If you should find from the evidence that when the property in controversy was transferred to the plaintiffs by Phillips Bros. & Co. said property was not in possession of Phillips Bros. &…