delivered (he Opinion of the Court.
Smith, having declared against Mc-Glasson for trespass, and the Writ having been executed, August 6th, 1829 — afterwards, at the April term, 1830, of the circuit court, the parties having appeared by their attorneys, the court, on motion made‘by the defendant, dismissed the suit: because, as appeared by theexhibition of a copy of the record of conviction, lie had been convicted, July 31st, 1829, of felony, and slated, that, when, the writ was. executed, he was in the custody of the sheriff, as a convict.
The authority for the judgment of the circuit court is not perceived. McGlasson was .as subject afier conviction as before, to a civil suit; and the notificatien (by the service of the writ) of the suit against him, was as effectual as it would have been if he had never been convicted. Such should be ■deemed to be the object and effect of the 5th section of an act of 1802. II. Digt. ir““
But if any extraneous fact existed, which rendered the writ, or the service of it, illegal, or which could have the effect of abating it, such fact should have been pleaded, so that an issue as to its truth might have been made tip and properly tried.
The plaintiff objected to the motion, and-to the •dismission of the suit by the court — and it does not appear that the judgment is sustained by any thing ■in the record.
Wherefore, the judgment of circuit court is reversed, and the cause remanded.