A preliminary question is raised here, as to whether the bill of exceptions found in the record is legitimately a part of the record.
It seems the cause was tried September 14th, 1859, and the bill signed and filed September 17th. The exceptions were taken, as the bill shows on its face at the time the decision of the court was pronounced on the several motions. This the bill shows affirmatively; but the bill was not signed at the time the exceptions were taken, and no reason given why it was not; but as the exceptions were taken on the trial, the bill will be considered as having been signed at the term, and so the record shows.
The plaintiff in error assigns, as error, the refusal of the court below to grant a new trial.
The evidence is somewhat contradictory and unsatisfactory. The jury trying the case knew the parties and witnesses, and have decided it in favor of the plaintiff in replevin, and we cannot say they decided wrong. The plaintiff proved, by two witnesses, that he had purchased the mare for value, before any execution had issued against the person from whom he purchased. That before there was any controversy about it, he claimed her and bought feed for her.
It is said, however, there was no change of possession. The facts are, that the plaintiff was a minor, living with his brother, from whom he purchased, and working for him on his farm. We have said, in Brown v. Riley, 22 Ill. R. 52, “ Whilst a sale of personal property, without a delivery and change of possession, is fraudulent as to subsequent purchasers and creditors, if the sale is made in good faith, for a sufficient consideration, and possession is taken by the purchaser, it is valid to pass the title against all creditors not having a lien upon it, and a loan of the property by' the purchaser to the seller, for a temporary purpose, or the employment of the seller to use the property in the pursuit of the business of the purchaser, will not avoid the sale, and render it liable to sale on an execution issued after the purchase.” It may be a circumstance against the fairness of a transaction, that the seller is subsequently found in possession, to be judged of by the jury. It is for them to determine whether such possession is bona fide or only colorable.
The jury believed the transaction fair, and we cannot say they were mistaken, or misunderstood the facts. The judgment must be affirmed.
Judgment affirmed.