The opinion of the court was delivered by

This was an action of trover for a horse taken by the defendant as the property of Charles Robinson. The question is, whether it was the property of Robinson or plaintiff. Robinson was properly admitted as a witness on the part of the plaintiff. If he had any interest in the suit, it was for the defend-? ant. It appears that the plaintiff, by his agent, sold land and took notes in the name of the agent, for convenience of the debtors in making payment; and probably to enable him, without any special power, to discharge any mortgages taken on the sale. Robinson was only trustee for the plaintiff, and had no interest in the notes. The plaintiff could, at any time, have taken them from him; after which, Carpenter, the debtor, W’ould not have been protected in making payment to him. He could not have availed himself of offsets against Robinson, if he knew that he was only trustee or agent for plaintiff. Where the notes were made payable in specific articles, or where such articles were received in payment of any notes thus taken, the articies received immediately became the property of the principal, and not of the agent. It is of no consequence what were the intentions of the agent as to purchasing the horse. Unless plaintiff assented it could not affect him in any wise, and the plaintiff at any time could have taken the horse from *438Robinson. In short, unless some act was clone by the plaintiff, _ , • t i r i • some consent from him, either express or implied, to transfer this horse to Robinson, he could not have been divested of his property therein. He could not be effected by any representations of Robinson, or even by any offers of Robinson to sell unless they were made with his consent, and no such consent is here found. If it was within the limits of Robinson’s power or agency, to make sale or exchange of the horse for other property, he might have transferred a good title to any one to whom he tni&ht sell, and still would not have been the owner, nor would the horse have been liable to be taken for his debt. The only circumstance from which i jury would have been at liberty to infer any property in Robinson (and this is very slight) would be from the lapse of time after he received it before it was taken, (although the case does not state when it was taken.) But this would be very slight evidence from which a jury could infer that the plaintiff had ever parted with the property which he originally had in the horse, when the same was taken in payment of a debt due to him.

We are satisfied in this case that the property was in the plaintiff, and from the facts which were in evidence the judgment should have been for him.

Judgment of the county court must therefore be reversed, and a new trial granted.