#### WILLIE GAITHER vs. ELIJAH TEAGUE.

Where on a contract for the sale of a horse the vendor is to retain the title until the purchase money is paid, and the vendee gives his note for the priee and takes posséssion of the horse, it is comp.etent for the vendor, in an action to recover the horse from one claiming under the vendee, to shew a judgment on the vendee’s note, execution and return of nulla bona, in order to shew that the price had not been paid;

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

This was an action of trover for a horse. The plaintiff shewed title to the property by offering in evidence an in. strument of writing signed by Edward Teague, under whom the defendant claimed. The instrument was in the following words, viz :•

“State of North Carolina, ) Know all men by these Burke County. j presents, that I, Edward

Teague, have this day bargained for a sorrel filly of Willie Gaither, which filly I want to stand as security until I pay him the said Gaither for her. I also promise to take good care of her. Witness my hand and seal this 5th of October, 1836. Edward Teague.”

At the time the instrument in question was executed and the possession of the properly passed to Edward TeaguOj the plaintiff took the note of the said Edward for thirty dollars, being the price of the horse. Afterwards tho plaintiff sued on the said note, obtained judgment and sued out exe*66cution, on which the officer returned “no goods.” On the the plaintiff offered to give these proceedings in evi-¿|fincei to s(lew- that the debt had not been paid and that the said Edward was insolvent. The evidence was rejected by the Court. The jury returned a verdict for the defendant, and judgment having been rendered pursuant thereto, the plaintiff appealed.

Boy&en for the plaintiff.

Badger for the defendant.

Daniel, J.

We think that the evidence rejected by the Superior Court would have been admissible against Edward Teague, if he had been the defendant. And as the present defendant claims under Edward (how it does not appear), it must be good evidence against him.

Per Curiam, Judgment reversed and venire de novo awarded.