#### HENRY C. ELLISON vs. JAMES JONES.

j)_ executes to H, E. an instrument under seal in the following words: “ Five months after date I promise to pay H. E, the sum of $50 for a horse —said horse to be H. E.’s horse till paid for. Held that this was only a conditional sale of the horse, an<l riot an- absolute sale and a mortgage from the vendee to the vendor.

Appeal from the Superior Court of Law of Randolph County, at Fall Term, 1843, his Honor Judge Manly presiding.

This action was brought to recover the value of a horse, taken and sold by the defendant as constable, under sundry executions against one Robert L. Dawson. The horse at the time of the seizure was in the possession of the said Dawson. The plaintiff, in the course of the trial, introduced a paper of the following tenor, viz :

“ Five months after date I promise to pay Henry Ellison the sum of fifty dollars for a horse — said horse to be said Henry Ellison’s horse till paid for, this 14th day of December, 1839.

Robert L. Dawson, (Seal.)

The counsel for the defendant contended that this instrument must be construed into a mortgage, and that it was void and inoperative for want of registration, and asked the court so to instruct the jury. The presiding lodge declined to give such instructions, but informed the jury that the paper seemed to be an undertaking on the part of Dawson to pay the money therein specified at the expiration of five months upon the consideration of his then having a title to the horse. And the paper in that sense,- was submitted to the jury to be considered with other evidence in ascertaining whether the horse was in good faith the property of the plaintiff. There was a verdict for the plaintiff under the charge of the court, and, a new trial having been moved for and refused, the defendant appealed.

*49No counsel for the plaintiff.

Mendenhall, Morehead and Iredell for the defendant.

Daniel-, J.

The horse in controversy had been the property of the plaintiff; and the instrument of writing-, which Dawson executed, declares that “ the said horsé is to be Henry Ellison’s horse till paid for.” These words were inserted, to repel any inference that might arise from the antecedent words in the instrument, that, the title to the horse had passed, and was executed in Dawson. The said words shew the understanding of the parties to be, that the contract was executory — but a conditional sale. There could have been no necessity for Ellison to have taken- a mortgage' o-n the horse to secure the price, unless there had been a prior absolute sale of the' horse to Dawson. We think that the instrument is only evidence of a conditional sale, and that it is not a mortgage and, therefore, did not require to be registered. Dawson’s possession of the horse was only a bailment by Ellison. The judgment must be affirmed,

Pee. Curiam* Judgment affirmed*