Venable v. Smith's ex'or

JUDGE PETERS

delivered the opinion of the court :

Whether W. T. Smith, the plaintiff in the execution claimed to be replevied, was living on the 19th of October, 1859, when it was issued, does not satisfactorily appear from the testimony. But we do not deem that fact material in this controversy, as it is shown conclusively that he had died previous to the 1st day of December, 1859, the date of the bond.

In Waynon vs. McCoy’s executor, 2 Bibb, 198, this court de*196cided that an execution abates by the death of the plaintiff, after it has been delivered to the sheriff, but before it has been levied…