Error to Oakland Circuit.

Elmer brought trover against Eifield to recover the value of a cow alleged to have been converted by the latter. The trial was by jury.

Upon the trial, the plaintiff, to maintain the issue on his part, was sworn as a witness, and testified that he was the owner of the cow in suit; that she was taken from his possession in the month of October, 1871, and that she was worth fifty-five dollars. Counsel for the plaintiff then asked the witness if he had heard the defendant make any statements about his having taken the cow. Whereupon the defendant’s counsel admitted in open court, that he took her from plaintiff’s possession.

On his cross-examination, the plaintiff testified that he bought the cow in August, 1871, of a Mrs. Duel; that Mrs. Duel has a son named Edwin Duel; that Mrs. Duel bought the cow of her son Edwin, as he heard both her and Edwin say; that he bought the cow of Mrs. Duel for forty-five dollars; that he paid nothing down, but gave, a chattel mortgage oh the cow for the purchase money, and since had paid five dollars on it; that before defendant took the cow, he had a conversation with him, in- which defendant told him the cow was his,, and he should take her; that this conversation was a few days after he bought her, and that when he had this conversation with defendant, he had not paid any thing on the purchase. Thereupon the plaintiff rested his case.

The counsel for the defendant, in opening his defense to the jury and court, stated that he would show that defendant sold the cow to Edwin Duel in the spring of 1870, upon the express condition that the cow should remain defendant’s until Duel had paid for her; that nothing .was paid at the time, and that the condition had not been performed by Duel, nor waived by defendant, at the time he took the cow from the plaintiff.

The defendant, to maintain the issue on his part, gave evidence tending to prove that the plaintiff had not paid any thing on the purchase, and called as a witness, one William Short, who testified that he formerly owned the cow in question; that he sold her to Mr. Fifield, the defendant, for fifty-five dollars, and that he delivered her to Edwin Duel in the spring of 1870. •

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