| Vt. | Jan 15, 1827
after stating-the case, delivered the following opinion.
The only questions litigated in this case, arise upon the charge of the Court to the jury. And the principal question there arising, is, whether the property in question was sufficiently delivered to vest the title in the plaintiff, as against Marvin. For the charge was,- that if the jury believed all the testimony on both sides, they ought to find for the plaintiff. There was no testimony that Marvin ever took possession, or had any control of the property, till the taking, of which the plaintiff complains as a trespass; and that control he obtained by the help of the key, which was left by Redfield, for the plaintiff; and it was delivered him by Ganson, who then supposed he applied in behalf of the plaintiff. This being all the possession of the defendant, the Court have no doubt but that the purchase by the plaintiff, and his going and taking what was in the barkhouse, and having the promise that the key of the shop should be left with Ganson, to enable him to get at the property in the shop, and the key’s being left accordingly, before Marvin obtained any possession whatever, as testified by the witnesses, was a sufficient purchase by, and delivery to, the plaintiff to entitle him to recover of the defendant. It was suggested by the counsel for the defendant, that the Court assumed the province of the jury, in saying, that it did not appear, that Marvin paid any consideration for the timber. This was obviously an allusion to there being no testimony of any actual payment by him, of any consideration. As the case undertakes to recite all the testimony, and as there is no mention of any such payment, the allusion was warranted by it. ■
The defendant takes nothing by his motion, and judgment must be entered upon the verdict, with additional damages and costs.