¶1delivered the opinion of the Court:
¶2This was an action brought before a justice of the peace to recover the value of certain rails which the plaintiff, Linder, alleged the defendant, Ashlock, had taken away. The plaintiff recovered judgment before the magistrate, and again in the circuit court, the last judgment being for thirteen dollars and fifty cents. To this judgment the defendant prosecuted a writ of error and asks for a reversal, on two grounds, first, that the verdict was against the evidence, and secondly, that his instructions were improperly refused.
¶3In regard to the first point we need only say that the jury were justified in considering the statements made by Ashlock as an admission that he had taken the rails.
¶4As to the second, the instructions were properly refused. The first was not applicable to the evidence, as the statements made by Ashlock were not made in a negotiation for a compromise, but to a third person, who repeated them to Linder, with a view, it is true, of bringing about a compromise, but not claiming that what he said was to be considered as confidential and spoken without prejudice. 1 Greenl. Ev. sec. 192. There was no treaty or negotiation, and the statement made by Ashlock, and carried by witness Armstrong to Linder, was again substantially repeated by Ashlock at the trial before the justice, without reference to a compromise.
¶5The second instruction was properly refused, as it was not the province of the court to tell the jury what inferences they were or were not to draw, from the fact that a party was not sworn.
¶6Judgment affirmed.