
    GEORGE B. WETMORE v. JESSE D. CLICK.
    In an action of trover for the conversion of a personal chattel, if the defendant does not rely upon a title in himself adverse to that of the plaintiff's vendor, such vendor is a competent witness for the plaintiff to prove the sale to him.
    This was an action of teovee, for the conversion of a horse, tried before PeesoN, J., at the last Pall Term of Davie Superior Court.
    It appeared, from the evidence, that on the 1st of May, 1856, Hays and Green, as partners, were the owners of the horse in question. They sold it to one Griffin. On the 24th of June, ene Dea ver, a constable, took the horse out of the possession of the plaintiff, by virtue of an execution against Green, and sold it to the defendant.
    There was no evidence of any sale by Griffin to the plaintiff, but there was evidence that the plaintiff had had the horse in his possession three or four weeks, claiming it as his property. The plaintiff then called Griffin, and offered to prove by him, that he had sold the horse to him (plaintiff). This evidence was objected to by the defendant’s counsel, on account of the witness’ interest in the suit, and excluded by the Court. Plaintiff excepted.
    
      In submission to the intimation of an opinion by bis Honor, that the plaintiff could not recover, because the title to the horse was shown to be in Griffin, the plaintiff took a nonsuit and appealed.
    
      Badger and Boy den, for the plaintiff.
    
      Clement, for the defendant.
   Battle, J".

The plaintiff’s vendor, Griffin, was clearly competent, as a witness, for the purpose for which he was called. It appears, as well from the facts stated in the bill of exceptions, as from the instruction of the Court thereupon, that the defendant, having ascertained that he could not show a good title in himself, sought to defeat the plaintiff’s recovery, by proving that the horse belonged to Griffin. The title of Griffin was not, therefore, the subject of.dispute between the parties, except that the plaintiff insisted it had been transferred to him, before the conversion by the defendant for which the suit was brought. When Griffin, then, was introduced to prove the sale by himself to the plaintiff, his proposed testimony was against his interest, because, until the sale was proved, his implied warranty of title could not arise. But the counsel for the defendant says that it is an established rule, that a vendor of personal property can never be called as a witness, by his vendee, to prove the title of the latter, and that no authority to the contrary can be shown. The cases of Nix v. Cutting, 4 Tann. Rep. IS, and 7Yard v. Wilkinson, 4 Barn, and Aid. Rep. 410, (6 Eng. C. L. Rep. 406,) are authorities to the contrary, and will be'found to support our proposition. It is true, that if the defendant had set up and relied upon a title adverse to that of Griffin, and the sale by the latter to the plaintiff had been admitted or proved, then the plaintiff could not have introduced Griffin as a witness to support his own title, because, being liable to the plaintiff upon an implied warranty, he would have had an interest in proving his own title to be good. It is in cases of that kind to which the authorities, cited and relied upon by the defendant’s counsel, apply. The distinction, between those cases and the one now under consideration, is certainly well founded, and it was, no doubt, a want of attention to it, which led liis Honor into the error of rejecting the testimony of Griffin, though offered for the sole purpose of proving a sale to the - plaintiff.

The judgment must be reversed, and a venire de novo' awarded.

Pee Curiam, ' Judgment reversed.  