Hart, J., (after stating the faets). Under the evidence as presented by the record the court should have directed the jury to find for the plaintiffs on the question of the payment of the notes. According to the testimony of the defendants themselves there was no delivery of the brick in payment of the notes. The brick remained on the brick yard in the kiln in which they were burnt. There was no symbolical delivery or anything whatever to indicate that there had been a change of control or possession taken of them by the plaintiffs. So it may be said that under the undisputed evidence that there was no delivery of the brick to the plaintiffs.
(1) In the case of McDermott v. Kimball Lumber Co., 102 Ark. 344, the court held, “Where the property is of such a nature and so situated that actual delivery can be made, that is necessary; but where the property is too ponderous and bulky for an actual change of its possession, a symbolical or constructive delivery, as by placing on it outward indicia of a change of possession and ownership, will be as effective as an actual delivery;” See, also, Jones v. Burks, 110 Ark. 108; Lee Wilson & Co. v. Crittenden County Bank & Trust Co., 98 Ark. 379; Chalmers & Son v. Bowen, 112 Ark. 63. In the latter case the court held that the jury might find that there was a delivery because the shells had been piled up at a landing on the river bank ready for shipment and the parties had gone there and started to weigh out the shells and had quit because the shells were too wet; but the agent of the buyer took possession of the shells and it was agreed that they had been turned over to him. Here, as we have seen, the brick were left in the kiln and nothing whatever was done to show that the bank took possession of them. The parties were not at the brick kiln when the defendants say they agreed to turn them over to the bank and nothing whatever was done which would tend to show that the bank had taken possession of the brick.
(2-3) On the question of attachment the issue of whether or not it should be sustained was submitted to the jury. This was not reversible error, but inasmuch as the judgment must be reversed and the cause remanded for a new trial, we call attention to the fact that it is the proper practice for the court to determine the issue raised as to the existence of grounds for attachment instead of submitting it to a jury. Von Berg v. Goodman, 85 Ark. 605. Where the attachment is discharged the court properly leaves it to the jury to assess the damages sustained by the defendant by reason of the attachment. Kirby’s Digest, § 381.
For the error in submitting to the jury the question of the payment of the notes, the judgment must be reversed and the cause will be remanded for a new trial.