necessary-instance. I. The plaintiff claims to be entitled to the possession of the goods under a mortgage executed by one Turner, and the defendant claims the goods under an attachment against Turner. The defendant pleaded that the mortgage was fraudulent, for the reason that it had been executed to hinder and delay the creditors of the mortgagor. No reply was filed, and counsel for the defendant insists that the defense above stated must therefore be deemed to be true. Bút a reply is only reqnired when a counter-claim is pleaded, and clearly the matter pleaded constituted a defense only. As to it, the burden was on the defendant; for fraud and dishonesty cannot be presumed. The only material evidence to establish that the mortgage was fraudulent, which was introduced, was the evidence of the plaintiff and the mortgagor. - The court, heard this evidence, saw the witnesses when testifying, and has found that the defendant failed to establish the fraudulent character of the mortgage. We cannot, under the settled practice of this court, disturb such finding; for the most that can be said is that, under the evidence, different minds might possibly come to different conclusions.
2. rbjplevik : yafue of eaoR prejudice.
*673-_. de_ prayer: judgSeritsTob-6 iateí°n 00 *66■ II. After the evidence was closed, the defendant moved the court to assess “ the value of the property, and of each article of the same, as required by law.” It is insisted that it was the duty of the court to make such finding, under section 3238 of the Code. But, as the judgment was rendered for the plaintiff, the defendant was in no manner prejudiced by the failure of the ■ court to make such finding. Counsel, however, insist that *67the defendant was prejudiced, because the only relief asked was a judgment of $500 and costs; and, as no finding of the value of the property was made, the plaintiff is entitled only to the judgment asked by him. The petition is defective in failing to ask a judgment for the possession of the.property, which, under the evidence and finding of the court, the plaintiff was entitled to. The object of the action was to determine who was entitled to such possession. This was the question tried and determined by the court. A demurrer was filed to the petition, but no ground assigned in the demurrer presented the question under consideration. It was not claimed in the answer that the petition was defective for the reason' above stated. No motion was filed for a new trial or in arrest of judgment. It is apparent, therefore, that the point made by counsel was not raised in the court below, and it cannot, therefore, be urged for the first time in this court. It should be stated that plaintiff got possession of the property in controversy under the writ. '
Affirmed.