Marquis v. Clark

Sherwood, C. J., delivered the opinion of the court. Since the bill of exceptions was stricken out, nothing remains, for examination but the record proper. The petition contains two counts, the first charging the unlawful detention of a quantity of shock corn, seeking its recovery and damages for its detention, the second count charging the conversion of 230 bushels of corn, and asking damages for its conversion. The jury found for defendant as to the first count, and assessed the value of the property, which it seems the plaintiff had replevied, but made no finding as to the second count. It has been stated that the finding was a general one, and that as [602] there were two distinct and independentV;ounts, and as there was a motion in arrest on this account, the error is fatal. But, as has just been seen, the finding was not general, and even if it were, there being no bill of exceptions, the motion in arrest has not been preserved. We are unable to discover, in consequence of the absence of any bill of exceptions, that the attention of the lower court was called to the absence of any finding on the second count. Nor are we able to see that plaintiff has been prejudiced. We therefore affirm the judgment; all the other judges concur.