delivered the opinion of the Court.
No objection was raised to the reading of the affidavit of Turner as evidence. The testimony of the sheriff was not only negative, but, showing that he had a deputy who might have received and executed the writ, it gave support to the statement of Turner, or, at any rate, did not controvert it. The testimony, then, established the commencement of a suit by all the Trustees at a time when they were proper parties to a suit within the rule declared in the case of McLarren et al. vs. Thurman, 3 Eng. 313, the subsequent non-suit by these plaintiffs, and the commencement of the present action within one year thereafter, when the plaintiffs in this action as assignees were proper parties, and therefore the bar of the statute did not attach; and therefore the motion for a new trial was properly overruled.
Let the judgment be affirmed.