This is an action of replevin brought in justice’s court, and appealed to the circuit, where it was tried before a jury, and verdict and judgment rendered in favor of defendant;. Plaintiff brings error. The action was brought to recover possession of a certain heifer which the plaintiff claimed to own. His claim was that the heifer was raised on his father’s farm, and was purchased by him from his father; that he turned it into a certain pasture called the “Church Pasture;” that he missed it out of the pasture, and found it in the possession of defendant, and took it from him on his writ. His further claim is that soon after he missed the heifer, and learned the defendant had it, he had a tаlk with defendant, in which defendant promised to return it to him. Plaintiff gave a desсription of the heifer as a “natural mulley.” The defendant’s claim was that he was the owner of the heifer; that it was born and raised on his farm; that in thе summer of 1900 he turned it out to pasture, and it escaped and went into the Church pasture, where he found it and took it ‘ away; that it was not a natural mulley, but had been dehorned. Considerable testimony was introduced by plаintiff tending to identify the heifer as a natural mulley and as his property. Therе was also considerable testimony introduced by defendant tending to shоw that it was his property, that it had been dehorned, and was not a naturаl mulley. These issues were fully and very fairly submitted to the jury.
It is claimed, however, by counsel for plaintiff, that the court erred in permitting defendant to give in еvidence certain statements made by plaintiff in reference to the return of the heifer; that the defendant should not have been permitted “to give portions of a conversation not consisting of any admission or statement of any fact material to any issue in the case; that unaccepted offers, by way of compromise, cannot affect the legal rights of the
We think we need notice but one portion of the charge. The court said:
“By preponderance of the.evidence, which the. plaintiff must have in this case, I mean that the testimony, when put in as to the claims of the respective parties, thе evidence produced by the plaintiff must weigh a little more than that оf the defendant. It must be enough to push down his side of the scale in order tо be a preponderance of the evidence, which the law requires he should bring here before you in order to be entitled to recover in this case.”
It is the claim of plaintiff’s counsel that the use of the above language was equivalent to saying that “ evidence” and “tеstimony” are synonymous terms. If this was a misuse of the term “testimony,” it was almost immediаtely cured by the court in saying: ‘ ‘ Now, the verdict is to be found in the manner in which I have directed,— from the preponderance of the evidenсe.”
We have examined the other questions with care, and find no error which we think could in any manner be prejudicial to plaintiff so as to warrant a new trial.
The judgment must be affirmed.