The opinion of the court was delivered by

— This is an action against the sheriff for trespass, in levying upon one man’s horse for another’s debt, and the plaintiff below succeeded. The first complaint here is against a part of the charge, to wit: “ If th? horse was sold, and delivered *208on John’s place in the forepart of January; — then he is next seen in Matthew’s possession on the 12th of February. If the horse was delivered at the time of the sale, or the next day after, and continued in John’s possession till the 12th of February, we think the time sufficiently long to avoid the application of the doctrine of legal fraud.” Now, certainly, the parties had a right to argue, from the evidence, that the above state of facts existed, and the jury had a right to find that it did; and how the court could declare that there was fraud-in the very countenance of such a delivery, we do not perceive. If they could, then the sale and delivery of a horse by one brother to another, is fraudulent, if the vendor be seen, on- his back three or four times within the next six months.

If we notice that the plaintiff relied on the sale and delivery, as made early in January, and that the jury have declared this proved, we shall see plainly enough that the declarations of the 'vendor, made in May or June following, when he was riding the horse, must be of very doubtful application; and we cannot see in what connection or for what purpose they were offered, and cannot therefore say that there was error in rejecting them.’

Judgment affirmed.