
    H. Merrifield v. Wm. Lucas.
    Pleading — Petition—Mortgage Exhibits — Enle to File — New Trials.
    When a petition discloses the existence of a mortgage and proposes to file it, it is in the power of the defendant to compelí the plaintiff to do so, but if he fails to exercise this right, or to interpose any other objection to the judgment in the circuit court, the irregularity is not a cause for reversal.
    APPEAL EROM RUSSELL CIRCUIT COURT.
    September 18, 1867.
   Opinion oe tiie Court by

Judge LIardin :

The mortgage, from tlie appellant to the appellee, as copied into the transcript by the clerk from the Oonnl.y Court records, cannot be regarded by this court as part of the record.

Hisiegarding the mortgage, and the facts it tends to disclose, as to the personal property mortgaged, the only question which we deem important in the case is, whether the failure of the plaintiff to file 1he mortgage, as an exhibit proffered by him, is an available cause of .reversal in this court. .

The mortgage is referred to as an exhibit, but is not made part of tlie petition, which seems to prevent a valid cause of action upon its face. As the petition discloses the existence of the mortgage, and proposes to file it, it was in the power of the defendant to compel the plaintiff to do so by a rule, but failing to exercise this right, or to interpose any other objection to tlie judgment in tlie Circuit Court, the irregularity is not a cause for a reversal in this court.

Wherefore, the judgment is affirmed.  