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The action was in replevin for one mare, one stallion, two cows, two yearlings, three calves, fifty sacks of wheat, eight sacks of barley, five sacies of oats, and eight sacks of bran. Defendant denied the ownership of plaintiff and justified the taking under a writ of attachment against the property of one Richard Pealy, and he alleged in his answer that plaintiff had replevined the property from him in this action, and he therefore demanded its return or its value in money. The value of the property is shown by the pleadings to be the sum of five hundred dollars. Plaintiff claimed to have acquired it from Pealy in several lots at intervals covering about seventeen months and there is nothing to indicate the separate value of the several portions. The dates of the alleged sales are as follows: January 20, 1910, two calves; May 28, 1910, mare and stallion; September 26, 1910, wheat and barley; January 23, 1911, one calf; June 5, 1911, two cows. It does not appear clearly just when the oats. and bran were purchased but it is a fair inference that it was about the same time as the wheat and barley.

The defense is based on section 3440 of the Civil Code and it is insisted by…