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.