This is an action of replevin for a horse, which the plaintiff claims was delivered, when a colt, to the defendant’s deceased husband, upon condition that it should be his, if he paid for it; otherwise to be returned to the plaintiff; and the plaintiff produced a writing, purporting to be signed by the deceased, to that effect.
The identity of the horse, and the genuineness of the writing, were denied. It was also claimed that the action was prematurely commenced, the writ having been sued out and put into the hands of an officer for service^ two days before a return of the horse was demanded.
At the request of the plaintiff’s counsel, the jury were directed to find specially whether the horse replevied was or was not the property of the plaintiff; and they found that it was not; that it was the property of the defendant.
This finding rendered the rulings of the presiding judge upon the last point, namely, as to whether the action was or was not prematurely commenced, immaterial; for if the horse replevied was the property of the defendant, and not the property of the plaintiff, of course the action could not be maintained, whether it was or was not prematurely commenced ; and the accuracy of the rulings upon that point need not be examined. We will add, however, that the question is not free from difficulty See 47 Maine, 520; 15 Mass., 359; 110 Mass., 446.
The only remaining question is, whether the finding of the jury *566is so clearly against the weight of evidence as to require its to set it aside. We think it is not. The burden of proof was upon the plaintiff, to prove the identity of the horse and the genuineness of the writing, both of which were denied; and we do not think the evidence upon these points is so clear and conclusive that a finding against the plaintiff must necessarily be wrong.
Motion and exceptions overruled.
Judgment on the verdict, and for a return.
Appleton, C. J., Barrows, Daneorth and Peters, JJ., concurred.