delivered the opinion of the Court:
This was an action of replevin; wherein the plaintiff claimed the property replevied as a purchaser from one Samuel Cully, and the defendants claimed the same by virtue of a chattel mortgage thereof to them given by Cully prior to his sale to the plaintiff.
On the trial, secondary evidence was given of the mortgage and its contents, it having been admitted that the recorder’s office of Cook county, in which the mortgage had been left to be recorded, and all the records of Cook county, had been destroyed, by the fire of October 9, 1871. Upon the conclusion of the whole testimony, the court below, on motion of the plaintiff’s counsel, excluded all the testimony relating to the chattel mortgage. This ruling is assigned as error.
The evidence seems to have been sufficient as to the execution of the mortgage, its acknowledgment before a justice of the peace, its contents, and the depositing it in the recorder’s office for record, and its not having been taken therefrom. The only defect of proof apparent to us is, the want of evidence that the mortgage was acknowledged before a justice of the peace of the justice’s district in which the mortgagor resided, as is required by the statute. The record fails to show that any objection was taken in the court below to the mortgage on that ground, and the court, upon its ruling, stated no reason whatever for its exclusion of the testimony. Had the objection been in any way raised in the court below, either by the opposite party or intimation of the court, that there was a want of proof that the mortgage was acknowledged before the proper justice of the peace, the defect might have been readily supplied by further evidence. As the record fails to show that this objection was made in the court below, we think it is not now, for the first time, entitled to consideration in this court; that this is in conformity with previous rulings of this court in analogous cases. It has been held by this court that a party can not avail himself, here, of an objection to the receipt of a written instrument in evidence without proof of its execution, unless that specific objection to the introduction of the instrument in evidence had been taken in the court below, so as to have afforded the opposite party an opportunity to obviate the objection. In the case of Funk v. Staats, 24 Ill. 644, in answer to an objection that the evidence failed to show that the justice of the peace before whom the acknowledgment of a chattel mortgage was taken had made entry of the fact, or made any memorandum of the property embraced in the mortgage on his docket, the court said: “The record fails to show that any objection was made to reading the mortgage in evidence on that ground. Other objections were urged at the time, and the party can not now be heard, for the first time, to raise that question.. To entitle it to consideration in this court, the question should have been raised on the trial below, and thus have afforded the opposite party an opportunity to obviate the objection.”
As the bill of exceptions only recites, generally, that, on motion of plaintiff’s counsel, all the testimony relating to the chattel mortgage was excluded, we take it to have been what it appears to be—a general motion for the exclusion of the testimony, and not one to exclude • it for the specific objection that it was not acknowledged before the right justice of the peace; and that it was error to exclude the testimony, upon a general motion to do so, without making such specific objection.
The judgment will be reversed and the cause remanded.
Judgment reversed.