¶1This was an action of trover for a mare, in which it appeared that the defendants had, on 10 November, 1847, converted the mare by virtue of a process of fi. fa. against Urias Wilson, a son of the plaintiff.
¶2George Wilson, a son living with his mother, testified that he bought the mare of a man of the name of Woollen in the spring of 1847, and after trying and finding that she worked kindly, sold her to his mother, and his mother, Urias having no animal with which to cultivate a crop, loaned the mare to him.
¶3Henry Suthern, who worked a part of the plaintiff's farm in 1847, also testifies that George made the purchase of Woollen, and not long afterwards sold to the mother, and that the mother lent the mare to Urias.
¶4Betsy Baker, defendant's witness, swore that the plaintiff said she had found out that the mare was bought by George (503) for Urias, and she (the mother) was angry about it, and that George should make Urias pay him for it, else she would turn him off. It was accordingly agreed between the sons that Urias was to pay George for the mare as he might want it. She saw a small sum paid. This witness, as well as several others, testified that Urias worked and fed the mare during the summer of 1847.
¶5A man by the name of Baker, also a witness in behalf of the defendants, swore the mare was bought by Urias, and that he worked her and used her and claimed her as his property.
¶6Pascal, another witness for the defendants, also swore that *357 Urias was the purchaser of the mare; that she was selected by a man named Stewart, and that Urias rode her home and claimed her as his own.
¶7Stewart, designated by the last witness as the person upon whose judgment the purchase was made, swore that he was not present at the sale at all, and knew nothing of it.
¶8The defendants' counsel, in the course of his argument, when noticing the testimony of George Wilson, asked instructions from the court to the effect that if he was believed to be corruptly false in any material particular, his testimony should be rejected altogether. In the reply of the plaintiff's counsel this rule for judging of witnesses was not denied, but expressly admitted to be correct.
¶9The court in the explanation to the jury did not notice the matter, for the reason that the court did not then, and does not now, perceive how it could be applicable to the plaintiff's witness.
¶10In the course of his Honor's charge he informed the jury that if George sold and delivered the mare to his mother for a reasonable consideration, the property in the animal would pass, although George at the time might be under a promise to let his brother Urias have the mare whenever he might (504) pay for her, and although they might believe further that this arrangement had been partially carried into effect by payment of a portion of the money.
¶11This part of the charge was excepted to, because of a want of evidence to make it pertinent.
¶12Under other instructions from the court, not objected to, the jury found a verdict in favor of the plaintiff.
¶13Rule for a new trial was discharged. In the course of his Honor's charge he informed the jury that "if George sold and delivered the mare to his mother for a reasonable consideration, the property in the animal would pass, although George at the time might be under a promise to let his brother Urias have the mare whenever he paid for her, and although they might believe further that this arrangement had been partially carried into effect by payment of a portion of the money."
¶14This part of the charge was excepted to.
¶15His Honor announced a clear proposition of law, that property passes by a sale and delivery, notwithstanding an executory agreement to sell to another and the receipt of a part of the *358 price. This part of the charge, we think, was pertinent, and was called for to prevent a misapprehension on the part of the jury as to this question of law. In fact, it was the point upon which the case turned.
¶16PER CURIAM. Judgment affirmed.
¶17(505)