#### JOHN POE vs. LEWIS HORNE.

A. having sold a horse to B., an infant, and taking his note for the price, and B. having - refused to pay, the contract was rescinded, the horse returned, and the note surrendered : — Held, in an action on the case by A. against B. for an injury to the horse while in B. possession, that the sale was binding upon A., that B. was possessed under it as owner, and not as bailee of A., and consequently the action did not lie.

This was an actioN on the case, in which the plaintiff declared in tort for an injury done to his horse whilst in the defendant’s possession — Plea, not guilty. Upon the trial before Caldwell, Judge, at Ashe, at Spring Term, 1853, the case was :— The defendant had purchased from the plaintiff the horse in question at the price of eighty dollars, and executed his note for that sum. He kept the horse for a short time, and while in his possession injured him by bad treatment to the value of twenty-five dollars, in the opinion of. the witnesses. After the horse was so injured, the plaintiff called on the' defendant to pay the note, which the defendant refused, alleging that he was an infant, and that if the plaintiff would not take back the horse, it was all he could get; whereupon the parties rescinded the contract — the plaintiff taking back the horse, and surrendering the note.

It was insisted for the plaintiff that it was a case of bailment, and the contract having been rescinded, it was the same as though-the property in the horse had remained in the plaintiff. There was a verdict for the plaintiff, subject to the opinion of his Honor, upon the question whether the action could be maintained ; and upon the said question reserved, his Honor being of opinion against the plaintiff, set aside the verdict, and entered judgment of nonsuit, from which the plaintiff appealed to the Supreme Court.

Mitchell, for the plaintiff.

Boy den, for the defendant.

Nash, C. J.

The attempt on the part of the plaintiff to convert the original contract between him and the defendant into a bailment, cannot be sustained. It bears no ieature of such a *399transaction, but was a sale out and out of the horse, whereby the absolute title vested in the defendant; for, although the defendant, in consequence of his infancy, was not bound by the contract, the plaintiff was. Finding he was in danger of losing the horse, he consented to the proposition to take him back, and surrender the note. In substance, it was a resale by the defendant to the plaintiff. While the horse was so the property of the defendant, he was injured, and to recover'damages for such injury, the action is brought: — it cannot be maintained. There is no error in the opinion of the Court, and the judgment is affirmed.

Per Curiam. Judgment affirmed.