The declarations of Plarrison Moody and Benjamin Bhodes, tending to show they were acting for, and claimed the corn in controversy as the property of defendant under a mortgage by plaintiff below and others to him, when they forcibly took it from plaintiff, were admissible or not as evidence against defendant, according as Moody and Bhodes were or were not his agents in that transaction. And, as testimony afterwards given tended to show very clearly that they were so, there was no error in the overruling of the objections to that evidence.
It was within the discretion of the court below to permit the plaintiff to return to the stand as a witness, immediately after she had withdrawn from it, to correct some testimony she had previously given.
No exception was taken, according to the bill of exceptions, to the action of the court in excluding the mortgage, or writing purporting to be such, set out in the record, and offered in evidence on the part of defendant. We cannot, therefore, revise this action if it were clear (as it is not) what precisely was the ruling in respect to it, which was made by the court.
The only erroneous charge among those given by the court, and set forth in the bill of exceptions, is the fifth in order, in which the jury were told “that the evidence in this case showed that Moody, Kulp and Bhodes were the agents of defendant, and he so charged them.” Although the evidence tended very clearly to establish the fact affirmed, this instruction, given without any request from either sido, was a manifest invasion of the province of the jury. The evidence in support of it was wholly oral; and its credibility *7should have been referred to the jury. For the court to assume that this testimony was true, and, thereupon, to instruct the jury that it established a fact which it was for them to ascertain, was error.—Stewart v. Russell, 38 Ala. 619, and cases therein referred to:
There was no evidence in this cause, the mortgage being excluded, to show any right whatever to the corn in defendant; and if there had been — yet, as according to all the proof, the possession of the corn was obtained by him through acts done against the will and remonstrances and in repudiation of the dominion of plaintiff — no demand of the corn was necessary to enable-her to maintain a suit for it. If entitled to recover at all, she was entitled to do so in virtue of the conversion of the corn by the seizure and removal of it from the premises she occupied, in defiance of any right she might have in it. Therefore, there was no error in the refusal of the court to give the charges asked for on behalf of defendant, both of which implied that a demand might have been necessary, and thus would have tended to mislead the jury.
For the error indicated, the judgment must be reversed, and the cause remanded.