¶1*47The opinion of the-court was delivered by
¶2From the testimony of one of the plaintiffs, as stated in the bill of exceptions, it appears that while they had the use of the defendant’s horse for which he recovered judgment, it was kept by them, so that his just claim against them in that behalf, was for compensation for the use of the horse, they keeping it. It does not appear, nor did the plaintiffs offer to show, so far as the case states, but that the damages in the suit of the defendant against the plaintiffs, were assessed upon that basis. The presumption, nothing to the contrary appearing, is that the damages were so assessed, and that adjudication would include and merge the claim the plaintiffs sought to enforce for the keeping of the horse in this suit. The decision of the court, as the case stood, in respect to that item, was correct.
¶3The other points saved in the exceptions, have not been urged in this court.
¶4Judgment affirmed.