delivered the opinion of the court.

.This is an action of replevin, for certain cattle. The case originated in a justice court, and was tried without a declaration or other written pleadings, and resulted, in the circuit court in a verdict and judgment for the plaintiff..

.The case is be-fore us without the evidence, the bill of exceptions having been stricken out. The appellant, however, asks for reversal because the return of the officer,, which describes the cattle taken by him and surrendered to the defendant on bond, shows that the cattle'were not those specifically described in.the affidavit and writ. "That there is such a variance is obvious, and, if we look alone to "the "writ- and return, it is unexplained. In the absence of a bill of exceptions showing the evidence and proceedings during; the trial;.-we cannot reverse, unless we can say that no state of facts can be conceived of which 'would sustain the result- reached. We must assume that the instructions contained in the- record were applicable to the *753evidence, and, as several instructions were given for tlie plaintiff, touching alleged fraudulent conduct of defendant in pointing out to the officer the cattle actually seized as being those sued for, we must infer that there was evidence tending to show such fraud.

We are not prepared to say that a state of facts may not be conceived of which would estop a defendant in replevin to deny that cattle in his possession, and pointed out to the officer and identified as the cattle sued for, were not, in fact, those described in the writ, and where, as in this case, the defendant gave bond for the cattle and no objection for variance was made until after the question of title has been litigated, and the testimony on both sides closed, a verdict for plaintiff will not be disturbed. Wells on Replevin, secs. 185, 208.

The objection for variance between the writ and the return should have been promptly made, so as to afford plaintiff opportunity to amend, if the variance were merely one of description, or to prosecute the action for the recovery of their value, under § 3723, code 1892, if there was an actual failure to take the cattle sued for, and if the facts of the case made that statute applicable.

Affirmed.

having been of counsel in the case, recused himself, and C. H. Alexander, Esq., a member of the bar, was appointed special judge to preside in his place.