
    Morris vs. Danielson and another.
    In replevin, for the unlawful taking of horses, the plaintiff showed that he bought and took possession of the horses on the 19th of August—that in September following the defendants had them in their possession, and took them to the stable of a third person, where they were left to be kept; Held, that the evidence, made out, prima facie, a tortious or unlawful talcing; and, if not answered, was sufficient to entitle the plaintiff to a verdict.
    Error to the New-York C. P. Morris brought replevin for a pair of horses in the court below, and declared for an unlawful taking. "The defendants severally pleaded non cepit. On the trial the plaintiff proved that he bought the horses of one Dayton on the 19th of August, 1839, and took them into his possession and used them. He then proved that' the defendants in September following had the horses in their possession and took them to a stable in Watts street and left them there to be kept. The court below nonsuited the plaintiff on the ground that there was no evidence of an unlawful or tor-
    
      tious taking, and so replevin in the cepit would not lie. The plaintiff now brings, error.
    
      W. S. Sears, for the plaintiff in error.
    
      U. D. French, for the defendants in error.
   By the Court, Bronson, J.

When the plaintiff had proved that the defendants were found taking away and disposing of his property, of which he had just before been in possession, it was enough to cast the burden on the defendants of showing how they came to the possession of the property. We are not to presume that the horses strayed from the plaintiff, or that the defendants got them by purchase or bailment. There was not only evidence enough to carry the cause to the jury, but if that evidence was not answered, the plaintiff would clearly be entitled to a verdict in his favor.

Judgment reversed.  