Opinion.— The motion to quash the sequestration bond was properly overruled by the court. The bond, in its terms and conditions, is in compliance with the statute then in force; besides, the said motion fails to point out any supposed defect in the same. P. D., art. 5096.
The court did not err in refusing to give the first instruction asked by appellants. There was no evidence in the case calling for or to which the same is applicable; it appears that Whaley bid off the property at sheriff’s sale; that Strickland advanced the money, and by an arrangement between them, the sheriff’s deed was made to Strickland; and in our opinion there was no such irregularity as would affect the legality of the sale. Norvell v. Phillips, 46 Tex., 162; Norvell v. Oury, 13 Tex., 31.
General damages only are averred in the answer of appellants, while the damages claimed by the testimony is for attorney’s fees and for loss of time in getting securities on their replevy bond. The former is not allowed as actual damages in cases like the one before us. Landa v. Obert, 45 Tex., 539. The latter may be allowed in proper cases as actual damages, but it is necessary to plead and show such damage specially. Wallace v. Finberg, 46 Tex., 35; Harris v. Finberg, 46 Tex., 79.
*490There is no evidence whatever showing that appellee was actuated ,by malice in suing out the writ of sequestration, and on this ground the court rightly refused to give the third instruction asked by appellants.
The objection to the verdict of the jury is not well.taken. It finds for the plaintiff the possession of the property, and also §85, as the rent of the same. The value of the property in controversy was not an issue in the case.
It is objected that Mrs. Jane Durnett is a married woman and that it ivas erroneous to render judgment against her for the §85. If she is a married woman, her privilege as such is not asserted in her answer, nor is the fact shown by the evidence.
Affirmed.