No. 34.

#### Bryan v. Reeves.

This was an action of replevin instituted by the appellant against the appellee to recover the possession of a horse alleged to have been wrongfully taken by him. The appellee justified the taking as a constable, under an execution issued by a justice of the peace of Clay county, in favor of Cockrell & Monroe, for the use of one E. D. Vickrey, dated Feb. 6, 1886, and against J. R. Bryan, the husband of the appellant. The evidence clearly establishes that the wife loaned her husband $300, which she had received from her father’s estate, and that she took a chattel mortgage on the property in question to secure the repayment of her money. There is no proof of fraud in'the transaction, arid the judgment for appellee is therefore reversed. But without considering the question of the Iona fides of the transaction, the judgment must be reversed because there is no evidence whatever that the defendant below was a constable, a fact necessary to establish in a case like this. Outhouse v. Allen, 72 Ill. 529.

Opinion filed Nov. 24, 1886.

Opinion by

Pillsbury, J.

Judge below, G. A. Hoff. Attorneys, for appellant, Mr. H. H. Cheslet ; for appellee, Messrs. Cockrell & Monroe.