#### Henry Bahe and Wilhelmina Fisher v. N. A. Baker.

Trespass—Talcing and Carrying Away of Personal Property.

1. Where suit is brought for the taking of certain definitely described horses, the plaintiff should not testify that “the defendants took some horses belonging to him,” and his testimony as to what the defendants *579below did, should be definite, not a statement of what was a mere conclusion formed by him from what had been told him.

2. The jury in such case should not be instructed to find for the plaintiff, both title and possession being in dispute.

[Opinion filed October 17, 1892.]

Hr error to the Superior Courtof Cook County; the Hon. Johít P„ Altgeld, Judge, presiding.

Mr. Rufus Kiug, for plaintiffs in error.

Mr. D„ W. Proctor, for defendant in error.

Watermau, J.

This was an action of trespass for taking and carrying away certain personal property.

At the conclusion of the evidence the court instructed the jury to find for the plaintiffs, saying that the only question to be considered was as to the value of the horses taken. The evidence was not conclusive that the plaintiff below was either actually or constructively in possession of the horses when the defendant below. Henry Bahe, took them into his custody; nor did the plaintiff conclusively establish either a general or qualified property in the horses.

Both his title and his possession were in dispute, and the jury ought not to have been instructed to find for him.

The plaintiff below ought not to have been permitted to testify in chief that the defendants took some horses belonging to him.” He brought suit for the taking of certain definitely described horses, and his evidence should not only have been confined to these, but his testimony as to what the defendants below did, should have been definite— not a statement of what was a mere conclusion he had formed from what had been told to him. The objection made to this testimony should have been sustained.

The judgment of the court below is reversed and the cause remanded.

Reversed and remanded.