Trover for a horse. The writ was dated Oct. 6, 1836. From the report of Shepley J. who tried the cause, it appeared that the plaintiff formerly owned the horse, and that in Jan. 1836, he let one Edmund Webber have the horse.

There was testimony tending to prove that Webber purchased the horse, and was to have paid one hundred and thirty dollars for the same, by a pair of oxen, to be appraised and delivered in April then next, the remainder to be paid in June or September following, and that the horse was not to be Webber’s unless he paid according to agreement; and there was testimony tending to prove that the horse was. sold to Webber unconditionally.

It appeared by the testimony of said Webber, that he had the oxen ready to be delivered at the time and place agreed upon for delivering the same, and for more than a year after ; and that the plaintiff never called upon him for the same, or for any thing in payment of the horse.

The defendant was proved to have been in possession of the horse, claiming to have purchased him of Webber, prior to the suing out of the plaintiff’s writ. There was testimony introduced tending to show a demand and refusal upon the defendant, and that there was no refusal.

The cause was submitted to the jury with instructions to find for the plaintiff, if they believed, from the evidence, that it was agreed that the horse should continue to be the plaintiff’s property, unless paid for; and if not, to find for the defendant ; and to return, with their verdict, whether there was or was not, a demand and refusal.

The jury returned a verdict for the plaintiff, and found that there was no refusal on the part of the defendant to deliver up the property demanded; which verdict was to be set aside, if the plaintiff, on the whole finding, was not entitled to recover.

The agreement between the plaintiff and Webber is a mere personal one, and not binding upon the property. Howes v. Ball, 14 Eng. C. Law R. 90. Webber is not proved to have been in fault. No suit could be maintained against him without demand. The defendant came rightfully into possession by delivery from him.

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