Several exceptions were taken to the rulings of the justice at the circuit, and those rulings, if erroneous, will entitle the defendants to a new trial.
The first exception taken is to the admission of the declaration of Wm. M. Foster, when called upon to comply with the terms of the sale. This testimony was objected to by the defendants, and not by the defendant H. 0. Foster as irrelevant as to him. It was clearly competent as to Wm. M. Foster, and if the defendant D. 0. Foster wished to object to it as *389incompetent as to him, he should have so stated the ground of his objection. It was not incompetent, irrelevant or improper as to the defendant Wm. M. Foster, and was therefore properly admitted.
[New York General Term, September 20, 1858.Davies, Sutherland and Hogehoom, Justices.]
The next exception was to the admission of the assignment executed by both defendants. We are unable to see any error in this. It was the act of both, and contained their joint declaration, and was competent testimony as to both.
The next exception was to the admission of the undertaking put in in this cause, on the return of the property to the defendants. This undertaking was given in the cause, as an act or proceeding therein, under section 211 of the code, which provides that at any time before delivery of the property to the plaintiff, the defendant may require a return thereof upon giving the undertaking prescribed, and on such undertaking being given he is entitled to a return. Both of the defendants in this cause appeared and answered, and by giving this undertaking both claimed a return of the property. It was an act or proceeding in the cause by both defendants, and as such was competent testimony to go to the jury, to disprove the allegation of their answer, that they did not detain the property described in the complaint. It was for the jury to say how much weight it was entitled to, and how far it went to establish the point that both defendants claimed to detain the plaintiff’s property. We think the justice properly refused to dismiss the complaint as to the defendant D. 0. Foster. There was certainly some evidence to show that he claimed with the other defendant to retain the plaintiff’s property, and the jury by their verdict have found that he did so detain it. We think there was evidence to sustain such finding, and that we ought not to disturb their verdict. We see no error in the charge of the justice, or in the refusal to charge as requested. The judgment appealed from must therefore be affirmed, with costs.