delivered the opinion of the court.
The defense made by the defendant in replevin, the appellee here, was practically that the mules, first loaned by Stewart to him, were afterwards sold by Stewart to him, in consideration of services rendered to Stewart by Graham in assisting him in his defense on a charge of murder. This defense was practically payment — -an affirmative defense — and the burden of proof was, of course, upon the defendant, and yet the court charged the jnry in instruction No. 1 for the defendant that the burden of proof was on the plaintiff, unqualifiedly, and without reference to the character of the defense. The charge is in the following words:
“The court charges the jury that the burden of proof is on the plaintiff, and if the jury believe that the testimony opposed to him is of only equal credit, and leaves the evidence equipoised, the plaintiff must fail.”
And the court erroneously refused charge No. 2 asked by the plaintiff to the effect that the burden of proof was on the defendant to show a change from a loan of the mules to a sale of the mules. The case is a close one on the facts, and hence this error is fatal.
Reversed and remanded.