¶1— This was an action by Irons against Shirts, the appellant, on two promissory notes, and also on an account for money paid for the use of the defendant, $300, work and labor done and performed by the plaintiff for the defendant, $300, and for goods sold and delivered, $300.
¶2The defendant answered in several paragraphs, all setting up new matter, some of which apply alone to the notes sued on, and go to impeach, in part, the consideration thereof. One paragraph alleges payment of the account for money paid, work and labor, and goods sold and delivered, stated in the third paragraph of the complaint, and two other paragraphs of the answer allege matters of set-off. No reply to the answer appears in the record, but it contains the following entry and statement, viz: “ Come now the parties by their attorneys, and the plaintiff filed a reply herein, which reply is in these words and figures, to-wit: (Reply not found on file in office of clerk.”) There was a trial by jury, and verdict for the plaintiff, upon which — a motion for a new trial having been overruled — there was judgment. The cause was tried and judgment rendered in the month of December, 1866, and it is claimed by the appellant that the record does not show that the trial was had at a time authorized by law for holding said court, and that the judgment, therefore, is void.
¶3*460The objection is not well taken. It appears by the record that the August term of said court was adjourned over, by order of the court, until the third Monday of November, 1866, under the act of 1855. 2 G. & H. 29. The cause was tried during said adjourned term, which was but a continuation of the regular August term of that year. The statute fully authorizes the court to hold an adjourned term for the pui’pose of completing the business undisposed of; and, the contrary not appearing, Ave will presume that the court was regularly held and the cause properly brought to trial. Hanes v. Worthington, 14 Ind. 320.
¶4One of the reasons filed for a ugav trial is, that “ the verdict of the jury is contrary to laAV,” on which an error is assigned thus: “ The court erred in not granting a neiv trial, for the reason that the Arerdict is contrary to laAV.” The error pointed out in argument is, that the record fails to show any replication to the defendant’s answer. We have seen that it appeal’s by an entry upon the order book of the court below, that a reply to the answer was in fact filed before the trial; but the clerk certifies, in making up the record, that it is not found among the files of the court. If it Avas filed, as the record asserts, and was subsequently lost, there is no foundation for the objection. But if Ave are to presume that no replication was filed, because it is not found in the record before us, still the question is not presented in such form as to make it available to the appel-. lant in this court. A refusal of the plaintiff below to reply to an answer, setting up new matter constituting a valid defense to the action, entitles the defendant to a judgment, under the statute, Avithout a trial; but if he fails to assert this right, and goes to trial and is beaten upon the merits, he cannot raise the objection for the first time in this court. Martindale v. Price, 14 Ind. 115; Henly v. Kern, 15 Ind. 391; Davis v. Engler, 18 Ind. 312; Preston v. Sandford’s Adm’r, 21 Ind. 156. In the case last cited, it was held that, by consenting to go to trial the defendant waived the reply,. *461and thereby consented to treat the answer as though denied, and go to .the proof of the matters alleged.
¶5If the objection could be made after trial, it would he properly presented by a motion for judgment non obstante veredicto, or possibly by a motion in arrest. But here it was not presented to the court below by the motion for a new trial, even though it might be reached in that form, nor is it properly presented to this court by an assignment of error, merely alleging that the verdict is contrary to law.
¶6The instructions of the court to the jury are in the record. Proper exceptions were taken by the appellant, under section 325 of the code, to the ninth and sixteenth instructions.
¶7The ninth is as follows: “ If you believe, from the evidence, that since the execution of the notes the defendant paid out any money for the plaintiff, with his knowledge and consent, or upon his request; that he has bought notes on the plaintiff", or that he sold any goods to the plaintiff", you will allow the defendant the value of whatever he may have proven, if anything, as a set-off.” The objection urged in argument is to that part of the instruction which we have italicised, which, it is said, contains the implication that the appellant could not recover, or be allowed a set-off, for money paid for the use of the plaintiff, unless it was paid with his knowledge and consent, or by his request. We think the instruction was correct. As a general rule, money voluntarily paid for the use of another, without his knowledge or consent, cannot, in the absence of any subsequent promise of payment, be recovered back. The instruction, we think, does not imply anything beyond that.
¶8By the sixteenth instraction, the court said to the jury that “ under the state of the pleadings filed by the parties, there being no general denial of the complaint, the amounts claimed by the plaintiff" in his complaint are admitted to be correct, and the plaintiff is not required to prove them.” This charge is clearly erroneous. Section 74 of the code expressly declares that “ allegations of value, or amount of *462damage, shall not bo considered as true by the failmre to controvert them.”
¶9In the third paragraph of' the complaint, the plaintiff claimed $300 “ for goods sold and delivered to the defendant,” $300 “ for work and labor done for the defendant at his request,” and $300 “ for money paid for the use of the defendant at his request,” making a total of $900.
¶10The paper filed as a bill of particulars is still more general than the complaint. It is not, in any sense of the term, “a bill of particulars.” The complaint contains no averment of an agreement between the parties as to the price or value of the goods sold or work and labor performed; nor did the defendant admit their value to be the amount claimed in the complaint, by failing to plead the general denial, and the court below erred in so instructing the jury.
¶11Several other questions are presented by the assignment of errors, but they all relate to matters contained in a bill of exceptions which was not filed within the time limited by the court, and, therefore, are not properly before us.
¶12The judgment is reversed, with costs, and the cause remanded for a new trial.