The evidence in this case is conflicting. Proof of the declarations of Wilborn should not have been admitted, unless they were made before the assignment of the claim to Herring on which the suit is brought.

The appellee makes a remittitur in this court, which should have been made before the case was appealed. This having been omitted, the appellee must pay the costs incurred by the appeal, and the judgment of .the District Court is affirmed.

Affirmed.