The demurrers to the complaint were properly overruled. The statute (Code, § 3069) provides that “the landlord of any storehouse, dwelling house, or other building shall have a lien on the goods, furniture and effects belonging to. the tenant, for his rent, which shall be superior to all other liens, except those for tax*320es.” A remedy is provided for the enforcement of the lien by levy of attachment upon the goods, &c., of the tenant. It is well settled in this State that a conversion of the goods upon which such a statutory lien exists by one, with notice of the lien, operates as a destruction of the lien, giving rise to an. action on the case by the landlord against the wrongdoer, for Ihe damage sustained.
. The Code, section 273, declares that every official bond is obligatory on the principal and sureties thereon,among other things, "for the use and benefit of every person who is injured, as well by any wrongful act committed undercolor of his office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” Under this provision, a constable and his official sureties are liable for his tortious acts, committed under color of-his office. See the authorities cited in the foot note to that section, Code of 1886, p. 110.
The complaint alleges, properly, the facts necessary to the existence of plaintiff’s lien, as a landlord, upon the goods of the tenant, in the house leased, and that the defendant Couch, who was a constable, and' acting as such, with notice of the plaintiff’s lien, levied upon and sold the goods under execution in his hands against the tenant, issued from a justice court of Beat No. 1, of the county, whereby the plaintiff’s lien was lost and destroyed. The constable’s official bond executed by him and the other defendants, as his sureties, is set out, with all facts averred sufficient to show a breach of its condition.
It is not material that the term of the lease had expired at the time of the conversion. The goods were, nevertheless, still subject to the plaintiff’s lien.
Nor is it material whether or no there were other goods of the tenant subject to plaintiff’s lien, against which he might have proceeded for the collection of his rent. This is not a case or place for marshalling securities. That doctrine has no existence in a legal forum ; and, we apprehend, it can nowhere be found that such an issue has been made up and tried before a jury at common law. It is a peculiar equity within the exclusive jurisdiction of the court of chancery, and was invented to protect junior lienholders against the kind of oppression and injustice of which counsel now complain, so earnestly, in argument. — 3 Pom. Eq. § 1414; 14 Am. & *321Eng. Ency, of Law, 685, et. seq; 3 Brick. Dig. 354, § 321, et. seq; 29 Am. Dec. 576; 27 id. 301. The most the execution creditor could have done, without a resort to equity, was to pay off the prior lien, and then preceed with his execution.
It is not ground of demurrer that the complainant claims special damages which are not recoverable. Such questions may be raised by motion to strike the claim from the complaint, or by objections to testimony, or instructions to the jury. What appears, in form, to be a second count in the complaint, we suppose was not, in fact, intended as such, but a part of the first count. It ought to have been omitted, for, alone, it does not pretend to show a cause of action; and, considered a part of the first count, it was improper, for the reason that the attorney’s fees and expenses claimed are not recoverable. There was no separate demurrer to it.
Pleas 3, 4, 5, 8 and 9 do not present a single element of a valid defense to the action, and they were properly stricken from the file. The second plea was well nigh, if not quite, as defective as the others, and the demurrer to it was properly sustained.
The case was tried upon the general issue. To charge the surety defendants, it was only necessary to show in connection with the other material facts, as to which there is no contention, that the levy and sale were made by Crouch, as constable, under an execution issued by a justice of the peace of Beat No. 1, of Lawrence county ; those being the facts averred in the complaint. The particular contents of the execution — whether the writ was regular or irregular, voidable or void — are imma-1 terial. If it was issued by the described magistrate, and was delivered to the constable as an execution, and he made the levy and sale, in the assertion of official authority under it, then the wrong was done under color of his office, and his sureties are liable by virtue of the statute. - — Authorities supra. To prove, therefore, that the constable acted under color of his office, asserting authority under an execution issued by a justice of Beat No. l.does not require, necessarily, the production of the writ itself, nor proof of its particular contents. It may be shown by the testimony of witnesses that the named justice issued the paper intended as an execution, "that the constable received it as such, and made the levy and sale *322under color of authority under it, as an execution. This was abundantly shown by testimony in which there was no conflict. It is, therefore, not material to notice the exceptions reserved touching the proof of the contents of the execution or the constable’s return thereof.
There is no merit in the argument that plaintiff was estopped by the conduct of his agent. The agent was sent there,according to the undisputed evidence, charged with no duty or authority other .than to collect the claim for rent. He had no power to waive any right of his principal. He could do nothing, binding the principal, but collect the debt, in full, in money. If, therefore, what he did, by any sort of inference, could be construed as a waiver of the lien, had he been authorized, his conduct cannot affect plaintiff. The court committed no error in giving the affirmative instruction in favor of the plaintiff.
Affirmed.