delivered the oponion of the Court. The principal question in this case is, whether the possession of the property in controversy was sufficiently changed, from Nathaniel Batchelder to the plaintiff, to vest the same, and render the sale complete as against the creditors of Nathaniel Batchelder ? It is scarcely contended by the plaintiff’s counsel that here was a sufficient change of possession according to various decisions of this Court, unless this should be considered a Sheriff’s sale, like that named in Kidd vs. Rawlinson, cited by the plaintiff’s counsel, and Boar.dman vs. Keeler, reported by J.likens. Indeed, there seems to be no change of possession whatever. The same day that the plaintiff bid off the property, N. Batchelder, the former owner, carried, with the sleigh and horses, a load of pork to the plaintiff’s house, went home with them, and they were kept at his barn, upon his hay, as before they were attached. Nor was the possession varied by what appears to have been said or agreed about/. W. Batchelder’s having them to perform a journey to Boston ; for he as yet had no possession or care of them. Was this, then, a Sheriff’s sale ? Carter, the defendant, as a deputy sheriff, had attached the same property upon a writ in favor oí Ira *172Batchelder against JV. Batchelder,. upon a note owned by Center Lamb & Co. Carter had kept the property about a week, when, by the mutual agreement of Lamb, JV. Batchelder, the plaintiff án(^ Batchelder, the property ivas sold at auction, without any previous advertising. Carter acted as auctioneer; the plaintiff bid off the property in Question f and probably «7. ffl. Batch-elder bid off the remainder; for he and the plaintifi gave to Larrth their note for hiswhole debt, being about $170.
The majority of us cannot view this as a Sheriff’s sale'. Carter was Sheriff, to be sure, and had, for a week, kept the property in his Custody under a writbut that Writ authorised no sale, nor was there a pretence of a sale under' it.- Carter derived all his power to sell from the agreement of the parties; and any other person might as well have been agreed upon as he. And no precept whatever could have authorised so sudden a sale, without the agreement of parties, and such agreement would answer as well without a precept as with. A Sheriff’s sale, such as was intended in the case of Boardman vs. Keeler, supposes a judgment establishing a debt due ; an execution upon that judgment; that delivered to an officer under oath to be faithful and impartial; a levy upon property by such officer 3 advertising the same for sale at least fourteen days, naming some public place for the sale ; an exposure of the property at public auction by such officer at the time and place thus advertised, so that not only the debtor himself and that particular creditor, but all the creditors of the same debt- or, may attend and bid upon the property, and prevent a waste for want of bidders; and, in the end, an official return of the sale by such officer upon such execution, to the office whence it issued, where it may be seen by any person who may desire to see it. No feature of all this proceeding is apparent in the sale now under consideration. This may have been in some sense public, but yet it must have been casually so.if at allj and was strictly under the private authority delegated to Carter by the parties immediately in interest; he at the same time acting without precept and without oath.
The authorities cited by the plaintiff’s Counsel upon this point do notseem entirely parallel with this case. The case of Leonard vs. Baker, in 1 Maule &. Selwin 251, was this : The owner, one Clee, on the 17th of January made an assignment of all his property to certain trustees for the benefit of his creditors. The trustees advertised regularly, and sold the property on the 12th of February. The plaintiff at such sale bought the household furniture, moved some of it home, and left the rest with his mother' for her' accommodation. Afterwards the plaintiff hired- the house of ths *173landlord, and took possession of the same with the furniture. Af« ter all this Collins attached the goods as the property of Che who had absconded. The plaintiff’s mother, who was Che’s wife, had used the furniture to entertain lodgers as formerly ; but, after the plaintiffhad hired the house and taken possession, Collins was informed that the plaintiff was the owner. The plaintiff recovered. As the plaintiff had actual possession before Collins’ attachment, the controversy could not have been about fraud in law, but fraud in fact.
The case of Latimer vs. Batson, 10 Com. Law Rep. 432, was actually a Sheriff’s sale. The Sheriff levied upon the property of the Duke of Marlborough, by virtue of an execution against him. The creditor became the purchaser, and sold to the plaintiff, who put a man in to take eare of the property while the Duke used it. On trial the question of possession was considered settled by the sale’s being by the Sheriff on execution ; and the only question left to the jury was, whether the sale was bona fide, or the purchase made with the money of the Duke ?
Another case is cited, Jezeph vs. Ingram, 4 Com. Law Rep. 303. The observations of the Court rather favor the present plaintiff. They grant a new trial, but do not give the best reason for it the facts in the case would warrant. The plaintiff sued Ingham as sheriff for a false return with regard to the goods, &c. of Newman ; claiming that the goods once Newman’s, but then in possession of one Dunk, were still liable to be taken and sold for Newman’s debt. The fact was, a Sheriff pressed Neivman with an execution, and Dunk stepped in and paid the execution, and paid other debts of Newman, amounting in all to four or five hundred pounds ; and took a conveyance of Newman’s house and farm, and all his, personal property except his household furniture; and took possession and care of the same under a contract that he should account, and first apply the profits to pay the interest, and the rest to discharge principal. Newman occupied a part of the house, and that furniture to which Dunk had no claim. Newman did not further intermeddle except the hiring some few laborers and referring them to Dunk who employed and paid them. The plaintiff claimed that the defendant as Sheriff should have sold as Newman’s property this personal property in possession of Dunk. The plaintiff obtained a verdict. The Court granted a new trial; and, if they had assigned as a reason that the property was in the possession oí Dunk, not of Newman, that might have been fully satisfactory without more.
We find nothing in these authorities-to support the sale under consideration without a more substantial change of ppssession than *174j3 ma¿[e to appear. As the Court, in their instructions to the jury, treated this as a Sheriffs sale, and one that need not be followed by possession, a new trial must be granted.
Upham, for plaintiff. Smith and Peck, for defendant.There is another part of the charge that deserves a moment’s attention. The request of the defendant’s counsel to the Court is broad enough to comprise every proper instruction to the jury in the cause. And the Court sufficiently instructed the jury not to find for the plaintiff if the sale to him of the property was not bona fide: yet, it appears to me the Court did not sufficiently call the attention of the jury to those parts of the testimony which were evidence of fraud in fact. As soon as Lamb’s lien was taken off the property by the note of the plaintiff and «7. W. Batcheider, JY. Batcheider could convey to the plaintiff as good a title without the interference of the Sheriff as with. And it seems difficult to conjecture why they should agree upon the ceremony of what the/called a Sheriff’s sale, unless it were considered a mode in which property might be sold, and yet remain in the custody of the. former owner, and be safe from the attachments of his creditors. And, if such a ceremony would answer that purpose, I presume it would be the usual manner of fraudulent conveyances. If the attention of the jury had been pointed to this circumstance, in connection with the fact, that no advertisement was posted up to give notice to other creditors to attend and bid, for the purpose of saving their debts, and the further fact that the possession remained as it was before the first attachment, I should deem it strange if the jury had not found the sale fraudulent in fact.
The majority of the Court reverse the judgment and grant a new trial.
N. B. — Prentiss, 3. delivered a dissenting opinion, and Turner, J. an opinion in support of the judgment of reversal.