delivered the opinion of the court. The petition states Mrs. Lambert sold the plaintiff a negro, who soon after the sale went away and was afterwards found in the possession of one Tyrrel, (in the state of Mississippi) who claimed him under a title anterior *301to Mrs. Lambert; whereupon the plaintiff brought suit against Tyrrel, and gave notice to his vendor that she might support her title. He concluded with a prayer that she might be decreed to pay back the price, with the costs of the suit, and that he might have further relief.

The answer denies that the disturbance complained of in the petition, gave rise to an action against her, the suit against Tyrrel, by the plaintiff, on shewing, being still undetermined.

At the trial, the plaintiff introduced, without any opposition, the record of his suit against Tyrrel, which had in the meanwhile been determined; and in which Tyrrel had prevailed.

The district judge was of opinion that the plaintiff had no cause of action on the inception of the suit, Tyrrell having then no judgment, and the plaintiff’s situation, in the present suit, was not bettered by the judgment afterwards obtained by Tyrrel. He accordingly nonsuited the plaintiff, who appealed.

The answer admits, because it does not deny, what the plaintiff alleged, viz. that Tyrrel detained the slave as his own property, and on the allegation of a title to him anterior to Mrs. *302Lambert's. The plaintiff has since shewn, without any opposition, that in the suit he brought against Tyrrel and of which he gave notice to his vendor, that she might support her title; Tyrrel has prevailed, and the plaintiff lost his slave.

On the petition and answer, the case stood, quasi on a demurrer at common law, and the question was merely one of law, whether the plaintiff’s action was not premature, the suit against Tyrrel being undetermined. The defendant suffered the issue to be changed, by allowing the introduction of the record of the suit against Tyrrel. It shews the latter prevailed. The consequence is that the plaintiff must have judgment on a different ground, than he had claimed in the petition, i. e. because he has been evicted on a suit of which he gave due notice to the vendor, requiring her to come and support her title, which she neglected to do.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the plaintiff recover from the defendant, Mrs. Lambert, $732, the price of the slave, with in*303terest from the inception of the suit, and $24, being the cost of the suit against Tyrrel, and costs in both courts, and that the case be remanded for further proceedings against P. K. Wagner, the vendor of Mrs. Lambert, cited as warranty.