¶1It was a material question at the trial as to whether the drug store sold by Reynolds was sold to Johnson or to Mayon. One of the circumstances relied upon by the defendant, to show that the sale was in fact made to Mayon, was that the purchase money was obtained from the bank, and was so obtained upon a promissory note of which Mayon was the maker and Johnson was the indorser. Mayon swore that his recollection was that he made the note and Johnson indorsed it. It appears that the note was taken up by Johnson some ten days after this action was brought, and was *332then torn up by him—and by this means it became impossible to produce it at the trial. Under these circumstances, the Court refused to instruct the jury that if they believed that Johnson tore up the note after the commencement of the suit, he knowing at the time that the note would be important evidence in this case, then they would be warranted in presuming that it was a note of which Johnson was the indorser and Mayon the maker, and in this refusal I think there was error. It. was certainly the destruction by the plaintiff of a piece of evidence of much importance in determining whether he was the purchaser of the drug store or not; for, in my opinion, the, circumstance that the bill of sale had been taken in the name of Johnson was by no means conclusive of the fact of a purchase made by him; if the purchase was made by Mayon, and the purchase money was furnished by him, the title would vest in him in favor of his creditors, even though the bill of sale ran upon its face to Johnson.
¶2For these reasons, I think the judgment ought to be reversed, and the cause remanded for a new trial.