
    * Samuel Allen versus Abiel Smith.
    Uf the possession of chattels necessary to maintain trespass for them.
    [Where the plaintiff, a creditor, took certain bricks, in part payment of a debt, which were set off to him from a kiln, and not removed at the time; it being agreed that the debtor might sell the whole or any part, if he secured or paid the debt, or the amount of any sale he should make, to the agent, appointed by the creditor to take charge of the bricks; and a lease of the brick-yard being given to the creditor, till the bricks should be sold, which was held by the agent who took possession openly and kept possession for the creditor; and the debtor continued in the use and occupation of the yard, and daily sold bricks from the kiln, and sometimes, but without the consent of the agent, from the part set off; — held, that the property passed, and that the sale and possession were sufficient as against other creditors; that the conditional authority to sell weis not inconsistent with plaintiff’s ownership; and that an action of trespass could be maintained by the plaintiff against an attaching creditor of the debtor . for taking and carrying them away. —Ed.]
    Trespass for taking and carrying away 40 thousand bricks, the property of the plaintiff. The cause was tried on the general issue, at the last April term, in this county, before Sewall, J.
    At the trial, the plaintiff proved that, in February, 1812, he was hired by one Samuel Mixer, of Ward, to make bricks in his yard there, to be paid for his labor, and that of another workman to be provided by the plaintiff, at the rate of one dollar and a half for every thousand of bricks that he should make and burn in the season, Mixer agreeing to board the plaintiff and his man, to find tools, teams, &c.
    Under this agreement, and having received of Mixer a lease of the brick-yard, the plaintiff, with his man, labored there until Oc tober, 1812; and in that time made and burnt two kilns of bricks, one of about 72 thousand, which Mixer sold and removed, and a second, estimated at 108 thousand, which remained entire in the yard.
    On the 6th of October, 1812, the plaintiff and Mixer came to a settlement of their mutual accounts. The latter being found indebted to the amount of 283 dollars, and declaring himself unable to pay the same in money, the plaintiff was induced, under some apprehensions of losing his demand, to accept a proposal of Mixer’s to pay him in two yoke of oxen, estimated at 120 dollars, and in bricks, to be set off in the remaining kiln. Accordingly the oxen were delivered to the plaintiff, and taken away; and the lease, said to have been made, to the plaintiff in the spring, having been given up and destroyed, a new memorandum in writing, signed and sealed by Mixer, was made, in which it was expressed, that he leased and let to the plaintiff, or bearer, all the brick-yard in which his bricks were, until his bricks should be sold and removed. The parties then went to the brick-yard, and there, in the presence of one Fitz and other witnesses, eight or nine arches, of fifteen of [ * 309 ] * which the kiln consisted, were counted off" upon the north-easterly end, and stakes were set up at the ninth arch, and a mark made upon the bricks, Mixer declaring that lie sold that part of the kiln to the plaintiff"; and it was agreed, between the plaintiff and Mixer, that the latter should have a right to sell the whole or any part of the bricks so set off to the plaintiff, provided that he first secured or paid the amount of his debt, or of any sale he should make, the payment or security to be made to Fitz, who was appointed the plaintiff’s agent. The plaintiff delivered to Fitz the memorandum of lease, and he undertook the charge of the plaintiff’s bricks, and he then left Ward, and returned to his home in FranTclin.
    
    
      Mixer continued in the use and occupation of the yard, and, on the day after the execution of his contract with the plaintiff, a quantity of bricks were delivered from the kiln, which Mixer offered to be taken from any part of it, (but the bricks then delivered were taken from the south-westerly end,) and daily sold and delivered bricks from this kiln; and particularly one Hart and one Clark, witnesses sworn at the trial of Mixer, delivered bricks which were taken from the part of the kiln which had been set off to the plaintiff; and this was done without any payment or security to Fitz, or any leave obtained by him. But as soon as Fitz came to the knowledge of it, he went to Mixer and forbade him selling any more bricks from that part of the kiln.
    ■ Simon Philips, also a witness, was employed by •Mixer to cart 5 thousand bricks, which he had sold for money, and was sent to Fitz for directions, and was ordered to pay the money to him. These bricks were accordingly delivered; but Fitz testified that they were taken from the westerly end of the kiln, and that he received the money for them, and paid it over to Mixer, after deducting the expense of carting.
    Finally, Mixer’s creditors breaking upon him, the defendant, having a just and due demand, amounting, with expenses, j * 310 ] * to about 100 dollars, sued out a writ of attachment against Mixer, and caused the bricks in question to be attached upon it. After the seizure of the bricks by Denny, a deputy sheriff, and the removal of 17 or 18 thousand of them, Fitz went to the brick-yard and gave notice of the plaintiff’s claim, and forbade Denny from proceeding, who then desisted from removing the bricks. In consequence of this information, the defendant went to Allen, the plaintiff, and, on his return, told Fitz that Allen said the bricks were his, but that Fitz had authority to count off the bricks. But Fitz, understanding this to be a liberty to deliver bricks to any person who would pay for them, and being told by the defendant that he had not informed Allen of the attachment, refused to deliver any, and went off to inform Allen of the attachment. The defendant took away the rest of the bricks, without the aid or direction of Denny. The return of the attachment was dated November 13', 1812.
    Upon this evidence the judge directed the jury to find for the defendant, if, under the memorandum of lease from Mixer to Allen, no possession of the brick-yard had been taken and continued by him, or by Fitz acting for him, — such possession as was visible and notorious to the neighborhood, — and that the writing itself, and the delivery of it, and the marking off a part of the kiln of bricks to Allen, did not amount to such a possession as was requisite to enable him to recover in this action, especially considering the use and occupation of the yard by Mixer.
    
    The jury finding a verdict for the plaintiff, the defendant moved for a new trial.
    
      Blake for the plaintiff.
    
      Lincoln for the defendant.
   Curia.

We see no sufficient reason to set aside this verdict. The jury have, in effect, found that a visible and notorious possession of the brick-yard had been taken and continued by the plaintiff, or his agent. They might well find a verdict for the plaintiff, pursuant to the directions- of the judge, if they believed that fact; and we have no right to * presume that they dis- [*311 ] regarded the other part of his directions, as to the legal effect of the memorandum of lease, and the marking off a part of the brick-kiln. It does not appear that the yard, during the time in question, was used for making other bricks, or occupied for any purpose, but for keeping in it the bricks of the plaintiff and of Mixer. This yard is not like a dwelling-house, which the plaintiff might have constantly occupied, by himself or an agent; or like a warehouse, of which he might have kept the key. It could not be necessary that he should keep an agent constantly in the yard, to watch his property, and keep possession of it.

The conveyance to the plaintiff appears to have been made bond fide, and for a valuable consideration. Possession was delivered to him at the time, in presence of sundry witnesses. It is not always necessary that there should be an actual removal of the goods, and a change of the possession from hand to hand. Here, from the, nature of the article, it could not be removed without considerable expense and loss; and it is not usual to remove bricks before thev are sold, nor to put them into a warehouse for sale, on account of the expense, and the damage they sustain by removal. The plaintiff, therefore, instead of removing them, kept them for sale in the same yard, with the consent of the owner of the land.

Mixer did not acquire any false credit, nor could any of his creditors be deceived; because the jury have found that the plaintiff’s possession was visible and notorious to the neighborhood. All Mixer’s creditors, who lived near him, would therefore be themselves apprized of the fact; "and others might ascertain it, by inquiring of those who are usually applied to for such information.

As to Mixer’s authority to sell the plaintiff’s bricks, that was on condition that he first paid or secured to the plaintiff the value of what he should sell, or the whole amount of his debt to the plaintiff. Such a conditional authority is not at all inconsistent with the plaintiff’s ownership. It gave Mixer no right to interrupt [*312] the possession * or divest the property of the plaintiff.

The goods were not delivered to Mixer to sell. It was, in effect, an agreement that he might repurchase them on certain terms, and then sell them on his own account. No purchaser or creditor could be deceived by this private agreement. Mixer not having the possession of the goods, which might give credit to his assertion of authority, they must have applied to the plaintiff or his agent, who had the possession, to learn the nature and extent of Mixer’s agency; and, on ascertaining his authority, they would know, at the same time, the condition precedent, by which it was limited

Judgment according to the verdict.  