1. This was a suit in the nature of an action of detinue, without bond, commenced before a justice of the peace for two cows and calves and some hogs, and removed by certiorari into the Circuit Court of Crenshaw county. The record consists almost entirely of a bill of exceptions and the judgment entry from the minutes.
To the complaint there was a plea of non detinet, and a special plea that defendant took the property as agent for another person who was entitled to it by virtue of a mortgage thereof, after the law-day of the mortgage. It is unnecessary to consider whether the demurrer to the second plea was rightfully overruled or not; because the bill of exceptions sets forth all the evidence that was submitted to the jury, and shows that the special plea was wholly unnecessary, all the defense made being authorized and the rights of the parties according to the evidence, being determinable under the plea of the general issue. For, under the mortgage referred to, the defense was that the plaintiff had thereby conveyed the title to the property in controversy out of himself to one whose agent defendant was in taking possession of it, and that it was not, therefore, unlawfully detained from plaintiff.
2. Mrs. M. J. Posey, the mortgagee, having, in the course of her testimony, explained that the mortgage was made to secure payment for a horse she had sold to plaintiff to enable him to make a crop, and that she had furnished him with guano also for the same purpose, unnecessarily mentioned that she had purchased the guano from one Henry, to whom she had executed a mortgage for the price. No property was-mentioned as mortgaged thereby; and this testimony was not objected to as irrelevant. It was moved only that the court should exclude “ the evidence that related to the mortgage made . . . for guano, on the ground that its loss or destruction had not been proved or its absence otherwise accounted for.” As this mortgage in no way affected the *594respective rights of the parties to this suit, and mere mention was made of it as an incident in a collateral transaction, which was not objected to as irrelevant, we think there was no error in the refusal to exclude the evidence upon the objection specially made to it.
3. The evidence of the loss of the mortgage made by plaintiff to Mrs. Posey, was sufficient to justify the introduction of the copy of it from the books in which it was recorded in the office of the Probate Court of Crenshaw county.
4. That part of the affidavit of Stringer, which was ruled out by the judge at the trial, was irrelevant to the question at issue in this cause, and there was no error in excluding it. The same is true in respect to that portion of the testimony of William Johnson, which was ruled out at the time of the trial. It was not relevant, and could tend only to confuse the matter which the jury had to try.
5. Having examined the charges given by the court to the jury, and excepted to on behalf of appellant, we do not find in them any material error. The mortgage expressly declares, that “ it is hereby understood and agreed that this obligation is made to secure a lien on my stock of every kind,” and does not limit it to stock furnished as an advance by the mortgagee, or bought with money advanced by her, as contended by appellant’s counsel.
6. If defendant below took the property in controversy out of the hands of an officer who had taken it, under process of law from the appellant, Deming, for another person as plaintiff against him, without the consent of the officer, for this misconduct, defendant would be responsible to the officer or such other person. Redress therefor could not be obtained in this action, and the Circuit Court consequently did not err in refusing to give the first and second charges asked for on behalf of appellant.
Nor was there any error in refusing the other charges asked for on behalf of plaintiff below.
Let the judgment of the Circuit Court be affirmed.