
    *Fuller v. Wilson and Another.
    Evidence.—Replevin for a horse. Plea, property in a third person. Held, that the declarations of such third person that he had sold the horse to the plaintiff, and had no claim to him, were not admissible evidence for the plaintiff, 
    
    Practice.—The refusal of an instruction to the jury (the record not showing that the instruction was applicable to the case), will be presumed to be correct.
    APPEAR from the Dearborn Circuit Court.
    
      A. Lane, for the appellant.
    
      J. Byman, P. L. Spooner, and D. Maey, for the appellees.
    
      
      
         Compton v. Flemming, 8 Blackf., 153.
    
   Dewey, J.

Replevin for a horse. Pleas, 1, Property in one John M. Fuller; 2, Property in Brown, one of the defendants. Replications, property in the plaintiff, and issues. Verdict and judgment for the defendants.

On the trial, the plaintiff offered in evidence the declarations of John 31. Fuller, the person named in the first plea, that he had sold the horse to the plaintiff, and did not claim to be the owner of it. The evidence was objected to and excluded.

We think the rejection of the evidence was right. The plea, that John 3£. Fuller was the owner of the property in dispute did not make him a party to the record. He was a competent witness for the plaintiff; his declarations were hearsay, and not admissible evidence.

There was an instruction to the jury asked for by the plaintiff and refused. As none of the evidence is spread upon the record, we have no means of knowing whether the instruction was pertinent to the facts of the case or not, and must, therefore, presume it to have been correctly refused. This is a point which we have frequently decided.

Fer Curiam,.—The judgment is affirmed with costs.  