Page:North Dakota Reports (vol. 3).pdf/331

 stolen from his ranch about August 5th, 1891, and that they were shipped east over the Northern Pacific Railroad by a party by the name of C. McCullom. Plaintiff positively identified the horses, both by the brand and by general appearance. The branding iron with which these horses were branded, and which plaintiff swore he had used for more than 12 years, was put in evidence, over defendant's objection. It might have been of assistance in identifying the horses, and was thus material. Plaintiff's neighbors who had assisted him in branding swore positively to the branding iron, and to plaintiff's loss of horses, but these witnesses were not permitted to see the horses in controversy, they being still in defendant's possession. Defendant's claim of title rested exclusively upon the fact that he purchased the horses in August, 1891, from one Charles McCullom, at Tower City, in this state, and paid full value therefor. This was consistent with and corroborative of plaintiff's evidence. No effort whatever was made by defendant to show that McCullom had any title to the horses. But it was sought on cross-examination of plaintiff to draw out matter on which to base an argument to the jury that plaintiff and McCullom were in collusion, because plaintiff had not taken active measures to apprehend and punish McCullom. In rebuttal of this idea, plaintiff was permitted to introduce, over defendant's objection, a subscription paper signed by thirty citizens of Oregon, and to which plaintiff was its largest subscriber, which was gotten up to raise funds to capture and convict parties implicated in stealing horses, and which paper stated that “H. C. Branstetter isa heavy loser.” Plaintiff was also allowed, over objection, to show, by the district attorney of Barnes County, that he applied to that officer to prosecute said McCullom, and by a justice of the peace that a warrant was issued for said McCullom, and by the deputy sheriff that said warrant was placed in his hands, and he went to New Rockford to arrest said McCullom, but did not find him. This was all proper to rebut the claim that plaintiff was in collusion with McCullom, and was properly admitted. See State v. McGahey, 55 N. W. Rep. 753, 3 N. D. (decided at