Page:North Dakota Reports (vol. 3).pdf/330

 sustaining the demurrer to the complaint in intervention is affirmed. All concur.

(55 N. W. Rep. 733.)

—For right of offset by surety, see Clark v. Sullivan, 2 N. D. 103.

Evidence to Refute Inference or Presumption of Fact.

A plaintiff may properly introduce evidence to refute an inference or presumption of fact that might arise from matters drawn from himself on cross examination, even though such evidence has no direct beating upon the issues, and the time of the introduction of such evidence is peculiarly within the discretion of the trial court.

Claim and Delivery—Ownership—Verdict.

In claim and delivery, where each party claims the right of possession by virtue of absolute ownership, and in no other manner, a verdict which finds the plaintiff entitled to the possession of the property, and fixes its value, will support a judgment for plaintiff for possession of the property, or its value as found by the jury.

Appeal from District Court, Barnes County; Rose, J.

Action by Henry C. Branstetter against William H. Morgan for the recovery of six horses. Plaintiff had judgment, and defendant appeals.

Affirmed.

M. A. Hildreth, for appellant.

G. K. Andrus, for respondent.

, C. J. The judgment in favor of the plaintiff in this case must be affirmed. There was practically no defense to the action. The case was claim and delivery for six horses. Both parties claimed by absolute ownership. Plaintiff's evidence showed that he raised the horses on his ranch in Umatilla County, Or.; that they were branded when young colts with a Y brand on the'left shoulder; that these horses, with 25 or 30 more, were