The jury have found a verdict for the defendant, on the ground that when Silloway made to the plaintiff the alleged sale and delivery of the lumber, a part of which is the subject of this action, it was the intention and understanding of both parties that the title to the lumber should not vest in the plaintiff, but that the property therein should continue in Silloway and be under his custody and control, and be disposed of for his benefit. And the court are of opinion that the jury were rightly instructed to find this verdict, if they should find that such, as above, were the intention and understanding of the said parties. For, on those facts, the plaintiff had no property in the lumber, and therefore cannot maintain an action to recover pay for it.

The testimony of the defendant at the trial seems to us to have been properly admitted. But that question is now immaterial to the decision of the case, and has not been argued by the plaintiff’s counsel. Exceptions overruled-