This was an action in trover, and, the evidence being undisputed that the plaintiff sold the horse which he sought to recover, and Voluntarily parted with its possession after receiving the stipulated purchase-price, it was not error to award a nonsuit. The plaintiff failed to show either title or right of possession; and either one or the other of these is essential to a recovery in trover. The fact that the plaintiff may have had a right of action arising from a breach of the warranty of the title, as to the horse for which he swapped, would not entitle him to recover by trover the horse he traded, there being no evidence that the trade was rescinded.
Judgment affirmed.
Pottle, J., not presiding.