I. The first question is, how are the rights of the parties affected by the fact that the issue made by the defendant’s traverse of the affidavit for an attachment in the case of Coolt v. Orane, has never been tried ?
The statute concerning the trial of such issue contains provisions which render it clear that the legislature intended that the same should be tried before the principal action. R. S., ch. 130, secs. 23 to 28, inclusive. Hence it may have been, and probably was, irregular, to take judgment in the principal action before such issue was disposed of. But it does not necessarily follow therefrom that the judgment can be successfully impeached in this action. It may be that the irregularity can only be reached by a direct proceeding to reverse the judgment. But whether the judgment be valid or void seems quite immaterial in this action. For if the judgment is absolutely void, the writ of attachment is valid, and the issue made by the traverse remains for trial. The right of the sheriff to the property in controversy does not depend upon the judgment, at all, but upon the attachment. He could have demanded it the next hour after the receipt was given, and, upon failure of the defendants to deliver the same, his right of action for the value of the property, no.t exempt, would have been perfect. The position of the counsel for the defendants, that the traverse suspended the power of the attachment to vest in the sheriff the right to the possession of the property attached, is untenablfe. At most, the traverse only suspended the right to a judgment in the action, and did not affect the right of the sheriff to the possession of the property. The circuit judge held correctly, therefore, that the nontrial of such traverse does not destroy or affect the plaintiff’s right of action.
*548II. The testimony has been carefully examined, and we are satisfied therefrom that it tends to prove that a portion of the property in controversy, equal in value to the amount of the verdict, was not exempt by law from seizure on attachment. This will preclude us from interfering with the verdict on the ground of defect of proof. We discover no errors in the rulings of the court on objections to testimony, at least none which were not subsequently cured; and the counsel for defendants does not claim a reversal of the judgment for any alleged errors of this kind.
' III. It only remains, therefore, to determine, whether there was error in any of the instructions given by the court to the jury. In order to understand the instruction chiefly complained of, it should be stated that it appears that one Adams held a note for about $188 against Crane, the attachment debtor, and that, before the attachment was executed, and on the same day, Crane sold or agreed to sell to Adams sufficient wheat out of a certain bin to pay the note. It became necessary to determine whether this wheat belonged to Crane, because, if it did belong to him, the wheat seized by virtue of the attachment was not exempt. The only testimony relative to the transaction is that of the defendant Bell, who testified as follows: “ Crane had sold some wheat in a bin, before attachment, to Adams. Mr. Adamswas to have $130 worth. He had a note, and this bin had been turned out to him, and he was to have enough to pay him; the note was $133 and some cents.” Again he says: “ In my presence the wheat was turned over to Adams, and a note given up. When he purchased this wheat, I saw the note figured up.” “ The wheat in the bin was turned over to Albert Adams ; he lived at Evansville. That note 'was due some time the fall or winter before. I first heard of the note about a month before the attachment. Adams spoke to me about it, and asked nle if Crane was gopd for it. I suffered. Crane to clean up the wheat. After it passed into Adams’ hands, it passed into mine. He said he was a good *549ways off, and couldn’t attend to it, so he wanted me to attend to it; so I took it,,and gave him my note. Crane’s note was for $183. I bought the bin of wheat with the understanding that if there was more than enough to pay my note of $133 to Adams, it was to be Crane’s. I let Crane clean up and carry it off, and took the figures he brought back as to amount.”
At the request of the plaintiff, the court gave the following instruction: “ If the jury find that as to the wheat claimed by defendants to have been turned over to Adams, the agreement between Crane and Adams, concerning the same, was, that Crane was to keep it in his possession, clean and market enough of it to pay Adams the amount of his claim, and pay said claim from moneys so obtained, such* a contract is not one of sale, and the title to such wheat remained in Crane.”
As a proposition of law, the instruction is clearly correct. But it is urged that there is no testimony tending to prove that Crane and Adams made any agreement of the character mentioned in the instruction, and that the tendency of the instruction was to mislead the jury to the prejudice of the defendants. It may fairly be inferred from the testimony, that all of the agreements in relation to this wheat, made between Crane and Adams, Adams and Bell and Bell and Crane, were made at the same time, and constituted but a single transaction. In the absence of more direct proof on the subject, we think that the court might properly assume that there was some testimony tending to show that a contract of the character mentioned in the instruction was made between Bell and Crane, in the first instance, if not between Adams and Crane. It is entirely immaterial whether Bell or Adams was the party to such contract with Crane. The same results would follow ■ in either case. Had the name of Bell been used in the instruction instead of that of Adams, the instruction would have been faultless. It is not perceived how the error (if it be an error) could have misled the jury to the prejudice of the defendants.
The instructions are quite lengthy, and the defendants have *550excepted to each paragraph thereof, whether the same is adverse to them or in their favor. The great majority of these exceptions are evidently not relied upon to reverse the judgment. They are not alluded to, or only barely mentioned, in the brief of counsel for defendants. The most of the propositions of law laid down by the court and thus excepted to, are correct statements of elementary principles,, which are perfectly well settled, and concerning which there is no room for controversy. Under these circumstances, it is deemed unnecessary to state or discuss the instructions farther.
The judgment of the circuit court must be affirmed.
By the Court. — Judgment affirmed.