Plaintiffs sold a steam-engine, corn-mill, &e., to one S., taking his notes, and a written agreement which the Circuit Court construed to be a chattel mortgage. Afterwards defendants recovered a judgment against S., and had this property levied upon as his property. Plaintiffs then brought action against the defendants and the sheriff, and obtained a verdict— the condition of the mortgage having been broken before action brought. The plaintiffs appealed, raising two points only, upon which this court held—
1. That it was not necessary for the plaintiffs to produce their notes to entitle them to recover, as the action was brought by the legal owners to recover the property, and their title was shown by the agreement, which was proved, and which showed the debt, whose existence was not, in terms, denied by the defendants.
2. That there was no error in the charge of the Circuit judge that “ the production by the plaintiff of the mortgage was sufficient prima facie to prove that the debt secured thereby was unpaid,” there being no allegation by defendants of payment. If such allegation had been made, it was incumbent upon the defendants to prove it. Opinion by
McGowan, A. J.,