
    Burgess, Respondent, vs. Quimby, Appellant.
    4. Cmin v. Smith £r Ken, affirmed, see ante, p. 444.
    
      Appeal from Platte Circuit Court.
    
    Action under the 8th article of the practice act of 1849, for the specific recovery of a horse. The plaintiff produced evidence tending to show that he loaned the horse to one Johnson, from whom defendant purchased, and proved declarations of Johnson, made while he was in-possession of the horse, that plaintiff was the owner, and to this last evidence defendant excepted. The defendant proved by Johnson that he bought the horse of plaintiff, and remained in possession until he sold to defendant.
    
      The following instruction was given for defendant :
    “ 2. If plaintiff knew of Johnson’s acts of ownership, without asserting his claim, and defendant purchased without notice, he was entitled to a verdict.”
    There was a verdict for plaintiff.
    Gardenhire, for appellant.
    Vories, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The only point presented for our determination in the record is, whether the declarations of Johnson, under whom the defendant claims, made while he was in possession of the horse, are evidence against the defendant.

This question has frequently been before this court, and has received the uniform determination that such evidence is admissible. (See the case of Cavin v. Smith & Kerr, decided at this term of the court.) The instruction, secondly, given for the defendant, was warranted by no evidence, and does not correctly state the proposition which it affects to do. Notwithstanding this advantage, there was a verdict against the defendant.

With the concurrence of the other judges, the judgment will be affirmed.  