The opinion of the court was delivered by
Bennett, J.From the intimation of the county court as to what their instructions would be to the jury, and the defendants having thereupon submitted to a verdict, this, case is to be considered as if the the jury had found all the facts and positions established, alluded to in the instructions which the. court intimated they should give. That there was evidence tending to prove the positions taken by the court, no one can doubt. Of the sufficiency and credibility of that testimony, if questioned, the jury should have been made the judges. It has been- said this action cannot be maintained in the name of the town. But it is the appropriate duty of the overseers of the poor to provide for their support, and save the town harmless as far as practicable. The consideration paid for the mare moved from the town and the purchase of her would inure to their benefit and the legal title vest in them. The overseers of the poor were, quoad hoc, but agents of the town.
Jones being in a distressed condition and in need of relief was justified in turning out this pittance of property to be expended in his support. The town paid a valuable consideration for it, and the creditors of Jones cannot impeach *427the transaction as being without consideration. Though Jones had his legal settlement in Lyndon, yet, he had no legal claim against the town for his support, and it was just as competent for the town to take a lien upon this property, as a means of indemnity, as for any individual who might have yielded him a support.
It is claimed that there was no sufficient change in the possession to protect the plaintiffs’ claim to the mare against the creditors of Jones. The case finds that the overseers, at the time, (that is, in April, 1840,) took the mare and put her out to keep and paid for her keeping till grass time, and then put her on the poor-house farm, where she remained, as the case says, under the exclusive control of the overseer of the farm till the attachment of the colt, except on two or three occasions when Jones had her to ride a short distance, and that on one of these occasions he rode her to Burke, in October of the same year, and her colt, which had been that season foaled on the poor-house farm, followed her, when it was attached as the property of Jones.
In this particular, the facts are much like those in Farnsworth v. Shepard, 6 Vt. R. 522. In that case the court held that such temporary lendings or hirings could not change or affect the character of the possession. It would, indeed, be strict to hold that a vendee could not perform the ordinary courtesies of civilized life towards the vendor, without endangering his property by subjecting it to attachment and execution for the vendor’s debts. The general and exclusive possession of the mare had been in the town, with the few temporary exceptions mentioned, for about six months before the attachment. We have no doubt upon this point. Besides, it might well be inquired, as this foal was not in esse when the mare was transferred, whether that would be subject to those rules which have been established and adhered to in this state, in regard to a change of possession.
The judgment of the county court is affirmed.