The defendant brought his action against plaintiffs in error, to recover certain cattle. The j ury found for defendant in error, the plaintiff below; and defendants, who are plaintiffs in error, moved for a-new trial. The court overruled the motion, and defendants excepted, and now here say, the court erred in refusing the motion.
One ground of the motion is, that the court erred in allowing Gus White to testify in the case, because his father, from whom he acquired the cattle sued for, was dead. There was no error in allowing the plaintiff to testify; his father, who was dead, was no party to this action, or the cause of action in issue or on trial; he was a competent witness under the act of 1860, Code, §3584, and fell within no exception thereto. See case of Scott vs. Matthews, decided at present term of this court.
The plaintiff claimed the cattle sued for, and not their value, so that the only question was, could the plaintiff recover? It was not necessary under the issue made, to prove the value of the property; its value is set forth in the declaration.
The verdict is amply sustained by the evidence, which showed that plaintiff’s father owned the cow from which the cattle sprang, and that he gave it to his son, the plaintiff, who had possession of the same in his father’s lifetime. The verdict was demanded by the evidence.
Judgment affirmed.