This is a controversy in equity over the equitable ownership of a certain fi.fa. Th.efi.fa. was in favor of Green, for the use of the Dalton City Company, against McOwen; and the question is, whether it belonged at. a certain time to Christian the father, or Christian the son, or rather, whether the father was justified in transferring it. Although the name of neither of these persons appears as a party to the/, fa. or in connection with the suit out of which the fi.fa. issued, there is no doubt that Christian, the son, was the original equitable owner, but' Christian, the father, transferred it to Johnson,.who was the attorney that represented the plaintiff in procuring it; and if he transferred it by the son’s implied or express authority, Johnson’s executrix, who is now claiming it, is the equitable owner. We think that the case was not properly tried upon the real controlling question, and therefore that a new trial ought to be granted, and the head-notes will explain our views as fully as it is necessary to state them.

We see no reason for sustaining any of the grounds of the motion for a new trial, except those indicated in the second head-note. The circumstances detailed in the evidence suggest very powerfully that the son had abandoned to the father, not by words, but by conduct, his rights of property in the fi.fa., or that both the father and Johnson had good cause so to believe, or to believe that the father had implied authority to use the fi.fa. or dispose of it as he pleased. The opinion of the jury on this element ought to control the case.

Judgment reversed.