Trespass de bonis asportatis by appellee against appellants.
The defendants’ special plea, combined practical!y the elements of the general issue, with an imperfectly pleaded special defense of justification. It is" properly admitted by counsel, that in so far as the plea seeks to *586justify, it is subject to some of the grounds of demurrer assigned ; but it is contended that duplicity in pleas is not available under our system, and the matters of special defense should have been rejected as surplusage, and the plea retained as a sufficient traverse of the declaration. The answer is, that the general issue was separately pleaded, and the defendants had the benefit of all matter provable under it. The demurrer was properly sustained.
The Walker county constable had no authority to levy the execution in Winston county, and there is no provision of the statute by which such authority can be acquired. Sections 3349 and 3350 of the Code do not meet the case. The case will have to be disposed of, then, with reference alone to the general issue. In this aspect., It is not pretended that the defendants had any title or right of possession to the property; so the only inquiry is, whether the plaintiff’s possession, actual or constructive, was invaded without her consent. If, before the seizure by the defendants, the plaintiff purchased any of the property from Davidson, and, as between her and Davidson, acquired the title thereto, no question of fraud, in the sale, upon the rights of Davidson’s creditors, arises ; for it is only where the rights of creditors are being enforced, by due process of law, that such questions arise. Stephenson’s execution against Davidson, being of no force in Winston county in the hands of the Walker county constable, is the same as if it had never been, unless it may be available to shed light on the animus of the parties• in making the .seizure, and mitigate damages which might otherwise be assessable against them. We had occasion to consider this latter question in Boggan v. Bennett, 102 Ala. 400, and on the authority of that case, we hold, that if the judgment and execution be offered in evidence, in connection with evidence that the seizure which constituted the trespass was made under the execution, then, for the purpose of mitigation of damages, they ought to be received; and if the jury should believe that the property was seized under the execution, in good faith, the defendants believing they were proceeding lawfully, and the seizure was accompanied-by no special oppression, malice, insult or other circumstances of aggravation, nothing more than *587actual damages ought to be awarded. If Morris acted under, and at the request of Stephenson, merely to .assist in making the levy, in like good faith and becoming behavior, the principle should apply to him as well as the others. Evidence of fraud upon creditors in making the sale, for the purpose of shedding light on the animus of defendants, would open too wide a field of investigation, and tend to draw the attention of the jury from the main issue.
The return to plaintiff of property wrongfully taken from her, did not discharge the trespass, but was provable to mitigate the damages, in reference to that property. There is no conflict in the evidence that some of the bed clothing and wearing apparel belonged to the plaintiff, and that it was seized by the defendants. The plaintiff was, therefore, entitled to recover for that, if the jury believed the evidence ; the damages to be ascertained with reference to the fact that it was returned. If the doctrine of “confusion of goods” had any application to a case like this (as it has not), there was no evidence that plaintiff was requested to point'out and distinguish her goods from Davidson's.
The evidence was such, that it was clearly a question for the jury whether there had been really a sale of the mules by Davidson to plaintiff prior to the seizure by defendants, or whether she had possession of them at the time of the seizure. If there had not been such a sale, and she did not have possession at the time of the seizure, then she was entitled to no damages on account of the mules. The return of the sale of the property under the execution, ought, when introduced in evidence, to be so limited, as that the jury will not consider the prices at which the property sold as evidence of its value.
The general charge for the plaintiff was properly given, by reason of the undisputed evidence, as to the plaintiff’s bedding and wearing apparel. The second charge given for plaintiff was also proper. The first charge requested by the defendants was abstract as to the taking of the property mentioned. The second charge requested by defendants, asserts a correct proposition of law, and could have been given without prejudice to plaintiff, but we are not prepared to say it was not abstract. The same as to the fourth charge, or the last clause thereof. This charge also ignores the evidence tending to show plain*588tiff was in possession of the mules at the time of seizure. The third charge was properly refused. The oral charge to which exception was reserved was a direct instruction upon the effect of the evidence, and withdrew from the jury the credibility of the evidence, and was erroneous.
Reversed and remanded.