majority">By the court.

The issue joined between these parties was upon the property of the plaintiff in the horse re-plevied. There is no doubt, that possession is prima *501facie evidence of property, sufficient to enable a party who has it to maintain replevin. 1 Chitty’s Pl. 158, But it is only prima facie evidence and may be rebutted by showing a title in a third person. When the plaintiff showed that he had the possession of the horse, when taken by the defendant, that was prima facie enough to enable him to maintain the action. But if the defendant had shown that the horse was the property of Brown, junior, this would have been prima facie an answer to the plaintiff’s evidence resulting from his possession. 1 Johns. 379, Harrison v. M'Intosh; 1 Salk. 94, Butcher v. Porter; 1 Pick. 357, Quincy v. Hall; 2 Levintz, 92, Weldman v. North.

This would pot, however, have been conclusive against the plaintiff, for, notwithstanding the property was in a stranger, the plaintiff might have shown a right of possession sufficient to enable him to maintain the action.

But if the evidence which was rejected had been admitted, and had proved the property of the horse to have been in D. Brown, jun. it would have rendered it necessary for the plaintiff to show the nature of the right on which he claimed to maintain the action, and if he had failed to show a right, the verdict must have been against him.

We are, therefore, of opinion, that the evidence ought to have been admitted, and that the, defendant is entitled to a new trial.

New trial granted.

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