
    
      McMICKEN, vs. BROWN.
    
    Appeal from the court of the third district.
    . t . A party who without oppo-evidencio go to the jury, on faet aot Put m issue, is 0⅞“"⅛5⅛!1 °n
   Martin, J.

delivered the opinion of the court. The defendant, sued for the value goods stolen from the plaintiff, to the stealth which the former is charged to have been an accessary, pleaded the general issue, and on a verdict and judgment against him, appealed.

At the trial his counsel requested the judge to charge the jury, that “he could not be found guilty on the pleadings, unless it was proven he assisted in stealing the goods, and it was not sufficient to shew he received the goods. knowing them to have been stolen.” The judge refused to charge the jury. A bill of exceptions was taken.

Preston for the plaintiff, Bradford for the defendant.

The defendant, if he chose to avail himself of this defence, ought to have opposed the introduction of evidence of the receipt of the stolen goods. He contested his liability as a receiver before the jury, and must be bound by their decision, even on a fact not specially put in issue, and the judge acted correctly in withholding the charge, and refusing to enable the defendant to counteract the effect of evidence he had suffered to go to the jury. Bryan & wife, vs. Moore. Canfield, vs. McLaughlin.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  