The opinion of the court was delivered.by.
Pierpoint, C. J.
This case comes before this court upon exceptions by the principal debtor and the trustees.
On the trial the parties on both sides waived all technical objections in respect to the declaration and pleas, so far as to try the case upon its merits, as far as it could be tried in any action of assumpsit, thus saving the right to object to the plaintiff’s right to recover in an action of assumpsit. And the defendant now insists that the action of assumpsit cannot be maintained upon the facts found by the referee. Although the party reserved the right, it does not appear from the report and the case as made for this court, that he raised this question before the referee, or that it was raised and passed upon in the court below. This being so, it is perfectly well settled, by repeated decisions, that the question cannot be raised in this court. Hence the judgment against the principal debtor must be affirmed.
It appears that the trustee Stowell, as constable, had an execution against Perry, the principal debtor, on which he had attached a horse belonging tQ said Perry, and had duly advertised *476the same for sale. When the property was sold on the execution, Stowell himself bid off the horse, supposing he had a legal right to do so. This was irregular, and either the creditor or Perry might have objected to it and treated the sale as void, but the creditor made no objection, the horse being sold for more than the amount of the execution. Perry was present at the sale and made no objection to Stowell’s bidding off the horse, and was satisfied with the price obtained for him. After the horse was bid off by Stowell, he sold the horse to the trustee Hastings. Perry was present at this last sale, and had full knowledge of the whole transaction, and when Stowell said to Perry that he believed he should let Hastings have the horse, he said, “ It makes no odds to me. The horse is yours; you may do what you are a mind to with it.” On these facts we think the sale to Hastings was good, and transferred the title, and Perry would be estopped from setting up any claim to the horse, or to the money for which the horse was sold. There was nothing in the transaction that was fraudulent as to Perry’s creditors; and as Perry could not sustain a claim, either for the horse or the money, this plaintiff by virtue of the trustee process cannot put himself in any better position than Perry stood.
Judgment as to trustees reversed, and trustees discharged.