Opinion of the Court by
This was an action of replevin, brought against the plaintiff in error for the unlawful taking of a horse. The, defendant pleaded, besides property in himself and property in a third person, non cepit, and the statute of limitations. On the trial before the circuit court of Madison county, the defendant in error, *173the plaintiff helow, proved the horse was claimed to belong to plaintiff’s wife. That it was also claimed by Philip Creamer, who sold the horse to one Lock, who sold it to one Elihu Mather, who sold it to the defendant. This was all the evidence of taking by the defendant.
Starr and Cowles, for plaintiff in error.
Blackwell, for defendant in error.
To maintain the action of replevin, there must be an unlawful taking from the actual, or constructive possession of the plaintiff, which has not been proved. The judgment must therefore be reversed, (a) , (1)
Judgment reversed.