ON REHEARING.
Hide, C. J.The appellant on motion and brief for rehearing argues anew the questions discussed, and the court finds no cause to change its former opinion except in one particular. Several replevin suits were brought, and were all consolidated into one action in the circuit court. All the property described in the writs were logs, each writ for a different lot of them, except in one writ there was described “five pilings of the value of $18.” Bond was given for the piling, as well as for the logs in this action, and for the logs in the other actions. There was an amount agreed upon for verdict, should the defendant, who was a deputy sheriff and representing the execution creditor, recover. One witness was asked about the piling, but he did not know anything about it. Otherwise, the piling seemed to have been lost sight of. The instructions used the word “timber” as descriptive of the property, and the witnesses used 'the terms “timber” and “logs.” Doubtless, the piling was overlooked; but as the record stands, there is no evidence to support the verdict as to this item.
The court, as heretofore indicated, is not favorably disposed' towards the judgment in this case, owing to the highly improper 'argument of appellee’s counsel, and will not sustain it beyond what is clear. The value of the piling is not controverted. The judgment, so far as the logs are concerned, is affirmed, but it is reversed to the extent of giving judgment here for $18, the value of the piling, and the costs of this court in favor of appellant.