Newbern,

January Term, 1806.

#### Pearse vs. Templeton.

T^EBT upon a bond, with condition, stating that defendant bad sold several warrants to the plaintiff; ard ihat if any of them were bad, that the defendant, on request, would give ere® dit on the note which Pearse had given fca the considi ration money, to the amount of the value, &c. The pleas were conditions performed and non est factum. Tht bond, was proved ; and the plaintiff further proved, that he had caused a survey to be made, pursuant to one of the warrants, No. ISO, and bad obtained a patent for 640 acres ; and he Mated, thatof two hundred acres, part of the 640, one Joseph Pearse was in possession 5 that the plaintiff had sued him lor the two hundred acres, in an action of ejectment, and that there was a verdict against him for the plaintiff. He offered the record of the ejectment to pove this. And it was oqj.ected by Harris, for the defendant, that Templeton was no party to that ejectment, and ihat it ought Hot to be read against him.

E contra,

it was argued that it ought to be read as prima facie evidence of title in the defendant in that action, leaving it to *380Templeton to shew, if he could, that the verdict was by Covin, or that the title was not in Joseph Pearse — -and the counsel cited 1 Wash. 306 to 308,

Hall, Judge.-

The record ought to be read, but can prove no more than that the plaintiff did not recover. It will not be of itself, proof that Joseph Pearse had tide.

The record tvas read, and Judge Hall directed the jury that the plaintiff should have proved Joseph Pearse’s title ; and that he had not done so, for the record was not evidence of that j and the plaintiff hearing the opinion of the court, suffered

A nonsuit.