This is an action to recover a horse, or his value, found in the possession of defendant, and alleged to have been stolen from plaintiff. The' defendant pleads a general denial, and calls in warranty his vendor. Judgment was rendered against defendant for the horse or his *13value, fixed at $350, and the same judgment was rendered in his favor against the warrantor, and both have appealed.
Plaintiff has shown that he was the owner of the horse in question, for several years prior and up to about the 10th or 12th day of May, 1864, when he disappeared from plaintiff’s stable at night, and was not heard of until in April, 1865, when sequestered iu the possession of defendant in this city, who shows that he purchased him in the latter part of February, 1SG5, for a valuable consideration, from one Phillip Dopf, a dealer iu horses in this city, who bought him on lGth February, 1865, from one P. D. Byrne. From whom the latter purchased him is not shown. It seems that the horse disappeared from the premises of plaintiff, in Alexandria, in this State, when the army under command of Gen. Banks evacuated that place ; and it is contended in' argument that the horse must be presumed to have been impressed for the use of the army or an army officer. There is nothing in the record to support such a presumption, and as plaintiff has established his ownership up to a particular date, the burden is on defendant, or those through whom he holds, to show alega] divestiture of plaintiff’s title. Under the circumstances presented by the evidence, the presumption of ownership arising from tire possession of a movable does not avail defendant or his authors.
We think, however, the proof does not sustain the value fixed by the lower Court. The weight of evidence fixes $300 as the value ; and we do not think the warrantor should be condemned to pay more than the price recovered by him, no damages being proven. C. P. 385. We ascertain this price from the allegations in the call and answer in warranty, which, taken together, will authorize, a judgment for $200 only against the warrantor.
It is therefore ordered that the judgment appealed from be reversed ; and it is now ordered that plaintiff recover of defendant the bay horse sequestered herein, or his value, $300, with privilege on the same and costs of suit in the lower Court; and it is further ordered, that defendant have judgment against Phillip Dopf, called in warranty, for the sum of $200, with all costs in the lou'or Court, costs of appeal to be paid by plaintiff and defendant jointly.