ON REHEARING.
It is urged in the petition for rehearing that the error in the court’s charge referred to in the opinion was not prejudicial, inasmuch as the jury found specially that the plaintiffs were in possession of the sheep at the time they were attached. But, so far as we know, the very finding may have been based upon the *482erroneous instructions of the trial judge to the effect that the shipment of the sheep in the name of the plaintiffs, followed by the delivery to them of the bill of lading, constituted a delivery of possession as a matter of law. In one of the numerous charges of the same general character the court said: “If you find that the sheep in question were on or about the nth day of April, 1893, delivered by George M. Beasley & Co. on board the cars on the track of the Northern Pacific Railroad Company at Rosebud, Montana, consigned by a bill of lading in evidence in this case to Rosenbaum Bros. & Co. at Dickinson, then I charge you that such delivery upon the cars aforesaid, and such issuing of the bill of lading, and the delivery thereof to Rosenbaum Bros. & Co., the plaintiffs in this action, constituted a delivery to them of the sheep in question, and they had a right to hold possession thereof until all moneys due by the firm of George M. Beasley & Co. for advances made to George M. Beasley & Co. in the commission business had been fully paid.” The court, by this instruction, told the jury that, as a matter of law, the plaintiffs were in possession if the sheep were shipped in the plaintiffs’ name, and the bill of lading was delivered to them. We are unable to say that the special finding referred to wás not based upon this erroneous statement of the law.
(67 N. W. Rep. 951.) All .concur.