McDermott

Defendant Mitchell sued Dibble and Morris for certain barley and wheat, and caused a writ to issue to Middleton, Sheriff, commanding him to take the wheat and barley into his possession. Ellsworth notified the Sheriff that the property was his, and the Sheriff thereupon demanded indemnity of Mitchell, plaintiff in said action, defendant in the present. Mitchell executed and delivered to the Sheriff the bond set forth in the complaint. Subsequently, Ellsworth recovered judgment against Middleton for a return of the property, or the value thereof, and costs. Middleton appealed, giving the undertaking on appeal recited in the complaint herein, executed by Middleton and by the present plaintiffs. The judgment was affirmed, and Middleton failing to return the property or pay the amount of the alternative judgment, the complaint alleges that plaintiffs, being sued upon the undertaking on appeal, were -compelled to pay the same.

The complaint also alleges the death of Middleton, insolvent, the appointment of Van Orden as administrator of the dece *618 dent’s estate, that the bond of indemnity executed to Middleton as Sheriff passed into the hands of such administrator as a portion of…