
    McINTYRE, Appellant, v. McCABE, Respondent.
    [Submitted March 30, 1897.
    Decided April 5, 1897.]
    
      Claim and Delivery — Evidence—New Trial.
    
    In an action to recover a horse, which defendant claimed to have bought from “H,” the bill of sale to “H” containing a description of the horse is hearsay evidence as to defendant and upon his objection was properly excluded.
    - New Tkial. — Where the evidence is conflicting, an order denying a motion for a new trial will be sus ained.
    
      Appeal from District Court, Silver Bow County. J. J. Me Hatton, Judge.
    
    Action by A. Gr. McIntyre against Peter McCabe. From a judgment for defendant, and from an order denying a motion for new trial, plaintiff appeals.
    Affirmed.
    
      
      John Lindsay and Clinton dé Lamb, for Appellant.
    
      O. M. Hall, for Respondent.
   Buck, J.

This was an action to recover possession of a horse. Respondent (defendant below) claimed that he had obtained the horse from one Holbrook. Holbrook testified on the witness stand that the horse in defendant’s possession was not the same animal he had sold him. To corroborate Holbrook’ s description of the horse he had sold to defendant, appellant (plaintiff below) offered in evidence a bill of sale from one Pollinger to Holbrook of the horse, which, according to Holbrook, he had originally bought from Pollinger, and subsequently sold to defendant. The court sustained an objection to the introduction in evidence of the, bill of sale on the ground that it was immaterial. This ruling was correct. The description of the horse by Pollinger in the bill of sale was merely, hearsay, so far as the defendant was concerned, and wholly immaterial. It is urged that the evidence was insufficient to support the verdict. The record shows there was a conflict in the evidence at the trial. The verdict must stand. The order denying the motion for a new trial and the judgment are affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.  