#### Edward H. James and James L. James, appellants, v. Alexander Dunlap, appellee.

Appeal from Morgan.

To an action of replevin for taking mules and horses, being the property of the plaintiff, out of his possession, the defendant avowed the taking by virtue of a writ of attachment, which was delivered to him as sheriff of the county of Morgan. To the avowry the plaintiff pleaded that the defendant was not sheriff, on the day of the issuing of the attachment, and at the time of the levy thereof. The defendant demurred to the plea: Held, that the plea was bad, because it attempted to put in issue the fact whether the defendant was sheriff on the day of the issuing of the writ, which was wholly immaterial. If the defendant was sheriff at the date of the levy, it was sufficient.

This cause was heard in the Court below, at the April term, 1838, before the Hon. William Thomas. Judgment was rendered *482for the defendant on demurrer. The plaintiff appealed to this Court.

H. B. McClure, for the appellants,

cited 7 Johns. 550 ; 9 Johns. 135.

R. Yates, for the appellee.

Lockwood, Justice,

delivered the opinion of the Court :

This was an action of replevin commenced by E. H. and J. L. James against Dunlap. The declaration alleges that the defendant, on the 29th day of November, 1838, took certain mules and horses, being the property of the plaintiffs, out of their possession.

The defendant avows that on the 28th of November, 1838, certain attachments were issued against the goods and chattels of the plaintiffs, which were delivered to the defendant, who was then sheriff of the county of Morgan, to execute, and that on the day and year, and at the place in said declaration mentioned, he seized and took possession of said property, and did detain the same, as was his duty, for the causes aforesaid. To this avowry the plaintiffs pleaded that on the day of issuing said attachments, and at the time of said supposed levy thereof, the said defendant was not sheriff of the county of Morgan. To this plea the defendant demurred, and the Court sustained the demurrer. The only question presented in this case is, whether the plea was a good bar to the defendant’s avowry.

The objection taken to the plea is, that it attempts to put in issue the fact whether Dunlap was sheriff of the county of Morgan on the day of issuing the writs of attachment, as well as on the day the levy was made. This was wholly immaterial. If Dunlap was sheriff on the day he levied the attachments on the property, his avowry was sufficient. The attempt, therefore, pf the plaintiffs, to put in issue the fact whether Dunlap was sheriff on the day of the issuing the writs of attachment, and which, it appears from the pleadings, was on a day previous to the seizure of the goods, was clearly wrong. For this reason the judgment of the Court below must be affirmed, with costs.

Judgment affirmed.