No. 56.

#### Mitchell, Lewis & Co. v. Upton Mfg. Co.

This was an action of replevin by the appellant against the appellee. Declaration m the cejoit and detioiei. Pleas own cejoit, own detvnet. Property in defendant and a special plea denying the assignment of a promissory note in controversy. Trial by the court without a jury by consent; finding not guilty; writ of retorno hdbendo awarded with costs. The principal questions in the case were as to the authority of one Burgess to assign the note in the name of the appellee and as to the sufficiency of an assumed possession of the property in dispute by the agent of appellants. These issues of fact were found by the court for defendant below, and after reading the evidence the court is inclined to agree with this finding. It is objected that the finding of not guilty being responsive only to the pleas own cejoit and own detinet, did not justify the judgment awarding a writ of retorno and for costs. This purely technical objection should have been interposed at the time, when the error could have been corrected, and no doubt would have been. It is too late to mdee it now: Bowden v. Bowden, 75 Ill. 111; Utter v. Jaffray, 15 Bradwell, 236.

Judgment affirmed.

Opinion by

Wall, P. J.

Judge below, O. T. *650Reeves.

Opinion filed Feb. 25, 1886.

Attorneys, for appellant, Mr. J. T. Lillard ; for appellee, Messrs. Pollock & Barr.