The opinion of the court was delivered by
In this case the exceptions to the report of the auditors are waived. The only question, which remains, is as to the exceptions taken at the trial. There is no demurrer to the declaration, and no motion in arrest, and our inquiry must be, > whether the proof supports the declaration ; — and, in our opinion, it does.
In the declaration it is stated that the defendant was bailiff of the plaintiff of certain property; but it is farther to be learned from the declaration, that the parties were tenants in common of the property mentioned; and it is very similar to a form given in Wentworth’s Pleadings. The evidence tended to show the joint ownership, and that the defendant had received more than he paid, and more than his share; and, on the issue formed, this, we think, entitled the plaintiff to a verdict, as it proved directly the allegations in the declaration.
Whether the declaration would have been good, if demurred to, we are not called on to say. The county court would not have been justified in testing the sufficiency of the declaration, on the trial of the issue formed. The judgment of the county court is therefore affirmed.