Appeal from the Circuit Court of Marshall.

Tried before the Hon. A. H. Alston.

This suit was brought by the appellee, Sarah E. Noble, against G. Z. Adamson, the sheriff of Marshall county and the sureties on his official bond, to recover damages for the alleged breach of said bond by the de-, fendant Adamson, in wrongfully taking and carrying a.way under color of his office, from the plaintiff, the property of the plaintiff.

The defendants pleaded the general issue and among others, the following special plea which was numbered 4: “ Comes the: defendants and for answer, to the complaint 'they say, that the property sued for wasi seized by the sheriff under and by virtue of an execution issued in favor of A. G. Henry v. Thomas Y. Noble, issued on July 18th, 1901, and out of the circuit court of Marshall county for one hundred, two> and 42-100 dollars besides $14.40 cost of suit; that defendant Adamson was indemnified by Sam Henry to make said levy; that on the 12th day of August, 1901, the said Sam Henry did purchase from one Thomas M. Barclift a mortgage on the mare sued for executed by said Thomas Y. Noble to said Barclift on the 7th day of December, 1900, for the purpose of securing a horse from said Barclift; that plaintiff knew of her husband’s intention to give said mortgage and authorized him to do so; that Barclift did not know that said mare belonged to plaintiff, and these facts defendants plead to the further prosecution of this suit, and they further aver that at the time of the issuance of said execution and of said levy the said Sam Henry was 'the owner of said judgment against Thomas Y. Noble.”

A demurrer was interposed the 4th plea, which was overruled. Thereupon the trial was had upon issue joined upon all tire pleas interposed by the defendants.

On the trial of the case the testimony for the plaintiff tended to show that the horse which was levied upon by the defendant was the plaintiff’s horse; that the execution under which the levy was made was issued upon a judgment which was recovered against the plaintiff’s husband. There was evidence introduced for the defendants tending to show that the horse which' was levied upon was the property of the plaintiff’s husband who was the defendant in the judgment upon which the execution was issued.

The defendants offered to introduce! in evidence the execution which was levied upon the horse in question, together with the return on said execution, The plain-lilt objected to the introduction in evidence of this writ of execution, upon the ground that it was void by reason of the plaintiff in said judgment having died before i Is .issuance. The court sustained the objection, and the defendants duly excepted.

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