Brooks sued Nill and Sturgis for the recovery of certain -articles of personal property. The complaint is in the usual form. The defendants answered:

1. By a denial.

2. That the property was, by them, legally purchased of one Daniel Croucher, the owner of it, who delivered possession thereof to the defendants.

3. That George Nill, one of the defendants, became security for Croucher in the purchase of, and for, the same property described in the complaint. And to induce Nill to become such surety, Croucher agreed to give a mortgage thereon, to secure Nill in such suretyship; and, in -pursuance of said agreement, Croucher did then and there deliver to Nill a mortgage, as *179agreed on. But by mistake of the parties, the property, in the complaint described, was omitted. It is averred that the plaintiff, with a full knowledge of these facts, and with intent to defraud Nill, obtained from Croucher a mortgage on said property, and, by virtue of it, claims possession, &c.

To the second paragraph there was a reply; but to the third there was a demurrer, which was sustained. The issues were submitted to a jury, who found for the plaintiff', and assessed his damage at 130 dollars, the value of the property, &e. New trial refused, and judgment, &c. The errors Assigned, so far as relied on in the appellants’ brief, are:

1. The sustaining of the demurrer.

2. The insufficiency of the evidence to sustain the verdict.

The defence demurred to, as we understand it, sets up a mortgage of the property in dispute, executed by Croucher to Nill, one of the defendants, prior to the date of the title relied on by the plaintiff. But the mortgage, thus set up, does not appear to have been filed with the pleading. Nor is there any averment that it was so filed. The defence, therefore, must be adjudged defective. 2 R. S. p. 44, sec. 78; 13 Ind. 58, 146. We have looked into the evidence, and are of opinion that it fully sustains the verdict.

Per Curiam. — The judgment is affirmed, with 5 per cent. damages and costs.