
    Reynolds vs. Lounsbury.
    In replevin in the cepit the declaration should allege a wrongful taking; but an omission in this respect is cured by verdict.
    A mere fault in pleading is not a proper ground for excepting at the trial, but should be taken advantage of by demurrer, motion in arrest, or writ of error.
    The question whether a witness is competent, though depending upon conflicting evidence, is for the court to decide; not the jury.
    
    A declaration made by the.plaintiff, with the intention of influencing the conduct of the defendant, who acts upon it, and will be injured if the plaintiff is allowed to gainsay it, is conclusive. Per Bronson, J.
    Otherwise, of a declaration made by the plaintiff to a third person, without any intention of influencing the conduct of the defendant, though he afterwards hear of and act upon it.
    Error to Cayuga C. P., where Jesse Lounsbury brought replevin against Reynolds, and declared for that the defendant, on &c., at &c., took one light bay mare of him the said plaintiff &c. When the cause came on to be tried and the jurors were called, the defendant objected that the issue was immaterial and the court had no authority to try the cause, because it was not alleged in the declaration that the defendant wrongfully took the property, as the statute requires. (2 JR. S. 528, § 36.) The objection was overruled, and the defendant excepted. The jurors were then sworn, and the trial proceeded. The case was this: the defendant was a constable and had an execution upon a judgment in favor of one Squires against Elias Lounsbury, the plaintiff’s brother, and took the mare by virtue of the execution on the 16th of June, 1842. After the plaintiff had given evidence that he owned the property, he called his brother Elias as a witness. The defendant objected, and said he would prove the witness interested. He called two witnesses, who swore that in May, the month before the levy, they heard the plaintiff say that he and his brothers, Elias and Daniel, were in partnership in the property. The court allowed Elias to be sworn, and the defendant excepted. Burns, one of the witnesses who swore to the plaintiff’s declaration about the partnership, said he was particular in his inquiries of the plaintiff, because he was interested in the note given by Elias on which the judgment had been recovered and the execution issued by virtue of which the levy was made; and that the mare was taken in consequence of what the plaintiff said to him. The court charged the jury that if the plaintiff owned the mare, he was entitled to a verdict. They refused to charge that the plaintiff was estopped by what he had said about the partnership; and told the jury they must take the whole of the testimony into consideration, and decide upon the facts as they appeared before them. The defendant excepted, and a verdict and judgment having passed against him, he brought error.
    
      O. Allen, for the plaintiff in error.
    
      W. H. Seward, for the defendant in error.
   By the Court, Bronson, J.

A fault in the pleadings is not a proper ground for tendering a bill of exceptions. After the defendant had omitted to demur to the declaration, he could only take an objection to its sufficiency by motion in arrest of judgment, or a writ of error. The question is before us, however, because it also appears in the record. The plaintiff should have alleged that the defendant w/rongfully took the property; but the defect is cured by the verdict. We must now presume that the court would not have allowed a recovery, unless it appeared that the taking was wrongful.

The defendant undertook to prove that Elias Lounsbury had an interest in the property, and gave evidence tending to that conclusion. But the plaintiff had before given evidence tending to show that he was the sole owner, and consequently that Elias could have no partnership interest. The court was not bound to look at the evidence on one side alone. They looked at the whole of the evidence, and came to the conclusion, as they well might, that Elias had no partnership interest in the property.

It is true that the question of fact whether Elias was part owner or not, would ultimately belong to the jury in passing upon the merits of the controversy. But when the question came up in this collateral way, it was addressed exclusively to the court. There was no ■ error in allowing the witness to be sworn.

The principal question is upon the supposed estoppel in pais. The plaintiff had said, a month before the levy, that he and his brothers, Daniel and Elias, were in partnership in the property; and it is insisted that the admission Avas conclusive upon him. When a party makes an admission with the intention to influence the conduct of another, and the latter acts upon it, and Avill be injured if the party is alloAved to gainsay it, the admission is conclusive. (Dezell v. Odell, 3 Hill, 215, and the cases there cited ; Dewey v. Field, 4 Metc. Rep. 381.) If the plaintiff had told the constable when he came Avith the execution that the property belonged, either in whole or in part, to Elias, and the constable had acted upon the admission, by taking this, and omitting to take other property, the plaintiff Avould be estopped from afterwards denying the ownership of Elias, and thus doing an injury to the constable. It Avould be against good conscience and honest dealing ; and that is the point on which the question of estoppel turns. But that is not this case. The plaintiff never said any thing to the constable, nor to the plaintiff in the execution: nor Avas his declaration made with the intention of influencing their conduct. The admission was made to other persons, and in reference to another matter. To say that such an admission is conclusive, xvould be to give the force of an estoppel to every thing'which it could he proved a man had said: and thus this most unsatisfactory kind of evidence—confessions out of court—would acquire a new and most dangerous importance. True, Burns testified that the levy was made in consequence of what the plaintiff said to him. He has not- told us how such a consequence happened to follow from the conversation ; and the most that can reasonably be inferred is, that he reported the conversation to the constable, or the plaintiff in the execution; and they treated the confession as an important item of evidence. They have had the benefit of the confession: the jury have considered and weighed it against the other evidence ; and that is all the importance that properly belonged to it. It could not operate in the nature of an estoppel.

Judgment affirmed. 
      
      а) After the court has decided in favor of the witness’ competency, the point cannot be submitted to the jury, though depending upon conflicting evidence. (Cowen & Hill’s Notes to Phill. Ev. p. 1501; but see Hart v. Heilner, 3 Rawle, 407.) The jury, however, are often required to pass upon the same evidence in estimating the witness’ credibility, (per Denman, Ch. J. in Shipton v. Thornton, 9 Adol. & Ellis, 314,) or in determining some other question connected with the merits, (Reynolds v. Lounsbury, in the text;) and then they are not precluded by the previous decision of the court, but may find the fact the other way. (Greenl. Ev. 472.) It is said that where the point of competency depends on the decision of intricate questions of fact, judges occasionally refer the matter preliminarily to the jury. (1 Phill. Ev., 2, note (1), 8th ed., by Phill. & Amos; see Taylor v. Taylor, 2 Watts' Rep. 357, 8.)
     
      
       As to the right of review in cases of this character, see Cowen & Hill’s Notes to Phill. Ev. 1501.
     