Concurriug.
I agree with my associate in affirmance of the judgment in this case, and base my concurrence upon the peculiar state of facts disclosed by the record herein. Were it not for the action and conduct of the plaintiff in this case to the extent that I déem he waived his right to insist upon an affirmative judgment in his favor, I should hold that it was error not to require a verdict determining the right of possession of all the animals in question. It was the plaintiff’s action. He was forced to the necessity of commencing an action to determine his right of possession of these animals. The fact that after he commenced his action he placed claim and delivery papers in the hands of the sheriff and obtained the possession of the property, did not adjudicate his right to the possession, and he was entitled, if he claimed it, to have a verdict and decree determining the right of possession to all the animals mentioned and described in his complaint. In this case, however, as said by my associate, the plaintiff and defendants seem to have proceeded from the very first of the trial upon the theory that plaintiff had all the animals, and that the only matter to be determined was how many of them the defendant was entitled to have returned. Having proceeded upon the trial on this theory and made no objection at any *105time until the case is brought here on appeal, and not having requested the court to require a verdict covering all the animals in controversy, the plaintiff cannot be heard to complain for the first time in this court of the failure to require a verdict and enter a judgment covering the fifteen hundred and twenty-five head still retained in his possession.
For the reasons above assigned by me, I think the judgment as to costs must likewise be affirmed. The plaintiff served upon the defendants a written offer to allow the defendants to take judgment against him for the possession of a certain number of animals and for all costs accrued up to that time. He proceeded thenceforth upon the theory that if the defendants obtained any judgment, they would be entitled to recover all their costs. Having taken that view in the lower court, and having submitted his offer on the theory that defendants would be entitled to recover their costs, he cannot be heard to complain for the first time in this court on account of the trial court rendering judgment against him for costs after a verdict was rendered in favor of the defendants. "Were it not for this state of facts, I should hold that under section 4901, Revised Statutes, the plaintiff would have been entitled to his costs. I therefore concur in the conclusion reached by Mr. Justice Sullivan.