¶1The opinion of the Court was delivered by
¶2The sheep in question were attached by the defendant as the properly of Pindergrass, and are claimed by the plaintiff under a previous sale from Pindergrass to him. The plaintiff paid a valuable consideration for the sheep, and the only question is, whether there was such a delivery and change of possession, as rendered the sale valid as against the defendant, a creditor of Pindergrass.
¶3The sheep, at the time of the sale as well as of the attachment, were in the keeping of Barney, who had undertaken to pasture twenty-two sheep for Pindergrass, through the season. The plaintiff purchased eleven of the sheep, and as he lived in a distant town, requested Barney, to whom he gave notice of the purchase, to act for him in selecting the sheep, and to take a delivery of and keep them for him, and he would pay for the keeping. Barney consented to this, and a few days afterwards a selection was made under the purchase, and the sheep delivered by Pindergrass to Barney, who marked them with the initials of the plaintiff’s name, and kept them for him until the attachment. There can be no doubt upon these facts, hut that every thing was done, which was necessary to complete the sale, and vest the property of the eleven sheep in the plaintiff. If a vendor of goods in the care and keeping of a third person, directs him to deliver them to the vendee, and the party holding the goods, on notice and application of the vendee, assents to retain the goods for him, it is a sufficient delivery and transfer. (Whitehouse vs. Frost, 12 East, 614. — Lucas vs. Dorrien, 7 Taunt. 278.) Barney took the'delivery of the eleven sheep as the agent of the plaintiff, and became his bailee, keeping them for his use and at his expense'. In all tire cases, where sales not fraudulent in fact have been ad-*378nidged void as against creditors, the vendor continued m the visa or possession oi the property, and the apparent ownership remained with him. But here, Pindergrass had neither the actual nor constructive possession of the sheep, or in any respect the use, controul, or disposition of them. Although before and at time of the attachment, they were kept in the same pasture with other sheep, some of which belonged to Barney, and some to Pindergrass, yet as Barney, and not Pindergrass, had the actual possession of them, it was the duty of the defendant to make inquiry, and ascertain the ownership. To hold the sale in the present case void as to creditors, would be carrying the doctrine respecting fraudulent sales to an unprecedented extent, far beyond what the policy of the law, or the reason of any of the adjudged cases, requires.
¶4Judgment affirmed.