This is an action of replevin for cattle, begun before a justice of the peace. Defendant prevailed below and plaintiff appeals. Plaintiff ’ s evidence tended to prove his ownership of the property and that he was entitled to the immediate possession thereof. The defendant undertook to justify his detention of the property under the stray law. The trial court’s rulings were against defendant on this branch of the case, and it is conceded that the case for defendant failed to show a compliance with the provisions of that law. There was also evidence for defendant tending to show that after the cattle came into his possession, plaintiff agreed with him to keep them for a stipulated price per month, thereby tending to establish in him a special property in the shape of an agister’s lien under the provisions of section 3196, Revised Statutes. This lien is such an one as may be waived by the party entitled to it. Besides, the claimant of such lien, if he means to abide by it, should assert it in unequivocal terms and not leave to conjecture whether he bases his detention of the property on account of his lien or some other ground. Instead of this we have the defendant disavowing any other lien than that given him by the stray law. He says, in his cross-examination, that “ all the claim I have to these cattle is under and by virtue of the stray or stock law. I base *6all claim to any lien or other claim to these cattle, solely and exclusively under and by virtue of the stray or stock law. I have no other, and make no claim to these cattle excepting what lien I may have under the provisions of the stray or stock law. I base my claim solely and exclusively upon and under the provisions of the stock law.” Under evidence of such positive and unequivocal character, I am not able to see how defendant can maintain his right to his judgment in this case. The verdict and judgment purport to be for the amount of his interest in the property. He can have no special interest in the property except by an agister’s lien ; he disavows the lien, and, therefore, disavows’his special interest. But it may be said that defendant did make claim of this lien in his examination in chief. He there said, “I claim under my contract with him (plaintiff), made at Wellington in June, 1886 j I claim under the stray law.” Prom his whole testimony, however, it is clear that during all the time of his keeping the cattle he was holding them under the stray law, and not making claim to a lien. He states plaintiff was to pay him for keeping the cattle, and to go before the justice and make the necessary proof required by the stray law. And so he held on to the claim under the stray law down to, and into, the trial. He made proof of what he had done under the provisions of that law and then, after he was fully advised of the situation, by having heard the rulings of the court, he emphatically disclaims any other lien than such as he may have by the stray or stock law. He cannot be permitted to maintain a lien in the face of his disclaimer. It may be said the evidence showing the amount of defendant’s account for keeping the cattle might be admitted to establish it as a setoff. A claim in the nature of a setoff, or counter-claim, may sometimes be allowed in an action of replevin. Wells on Replevin, sects. 631, 632; Ball v. Talcott, 47 Mo. 343; Fairman v. Fluck, 5 Watts, 516 ; Phillips v. Monges, 4 Whart. 226; Peterson v. Haight, 3 Whart. 150. Butin this case, passing by the question whether such claim *7should not have been filed with the justice before trial, there are no damages asked by plaintiff and, therefore, nothing to set off. Besides the evidence was not admitted nor was the case tried on the theory of a setoff.
As the only claim defendant made to the cattle was by an illegal proceeding under the stray law, the only question which should have been tried was plaintiff’s ownership. As owner, he would be entitled to the immediate possession, unless by reason of some intervening legal cause, which, as has been stated, was not shown to exist in this case.
The judgment is reversed and the causo remanded.
Philips, P. J., concurs. Hall, J., absent.