majority">Marston, J.

The questions raised in this case grow out of an assignment made by Benjamin Schloss to plaintiff in error, and which „was attacked by Schloss’ creditors as being fraudulent. The assignment bore date February 1, 1877, and the assignee claimed to have at once taken possession of the property.

*77First. The first error assigned relates to the admission of Freeman’s testimony as to his conversation with the assignor some six weeks after the date of the assignment. This was objected to, unless it appeared the assignee was present.

"While there has been a tendency shown to permit a somewhat wide range in attacking these assignments, for the purpose of showing fraud, still it must be borne in mind that the assignor may himself change his views and seek by subsequent acts to change what was originally honest into having the appearance of a fraudulent character. The rule therefore should not be so general as to permit such a result if it can be avoided. Upon this subject see Baldwin v. Blanchard, 11 Mich., 389; Flanigan v. Lampman, 12 id., 58; Smith v. Mitchell, id., 180; and Angell v. Rosenbury, id., 241.

The evidence in the present case showed that when the witness entered the store he found Mr. Schloss, the assignor, and a clerk there; that he inquired of Mr. Schloss about the books; that Schloss produced them, also a list of assigned accounts, and made the statements testified to and complained of. This testimony fairly tended to show that Schloss was in possession of the assigned property, and of the books, accounts, etc. If the assignor permitted this, then we are of opinion the statements made as to what had been assigned, and to whom, were admissible.

Second. Certain books of account were, it is claimed, erroneously admitted. It was claimed that these books did not show any indebtedness of Benjamin Schloss to Schloss Bros., while certain entries therein showed a transfer of certain accounts to a large amount to Schloss Bros.

We are of opinion that the books were admissible for the purpose for which they were offered and used. Whether other books of Mr. Schloss would have shown that he was in fact indebted to Schloss Bros., and thus accounted for the assignment of the accounts, could not *78prevent the introduction of these. If others existed the assignee would be presumed to have the custody of them. If he did, and they were not produced, or if none such existed, the creditors could not be deprived of their right to make use of those they were able to obtain.

Much of what has been said is equally applicable to what the books showed as to the settlement of certain accounts by note, and the transfer thereof in connection with the assignee’s testimony that such notes did not come into his possession. The evidence was admissible.

We have carefully examined, the charge to the jury, and while there are sentences which, if standing by themselves, could not be sustained, yet it is now well settled in this court that the charge must be considered as a whole, and the charge ,in this case, when so considered, may well be sustained.

One objection, taken in this court for the first time, would clearly have been good if presented in the court below. The defendant seized and justified taking the property upon process against the assignor in favor of his creditors. The plea was that of the general issue, only. There should have been a notice attached to the plea. Had this objection been taken in the court below, an amendment would undoubtedly have been permitted upon terms. Where the parties do not think proper to raise such an objection, but proceed to and do try the case upon its merits, as though such notice were given, we think they cannot raise the question in this court. It may very fairly be said that they waived it.

The judgment must be affirmed with costs.

The other Justices concurred.

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