
    Martin vs. England.
    Where an execution has issued against one as the surety for the delivery of property, the onus of showing a delivery bond is upon the party attempting to avail himself of such execution.
    An officer taking a delivery bond is not authorized to stipulate in the bond for any particular hour of the day when the property is to be delivered.
    If a delivery bond contain a condition that the property shall be delivered at 12 o’clock of the day of sale, it cannot be returned forfeited if the property be delivered at the place appointed after that time, before sunset, and while there are bidders remaining. The law only requires it to be delivered in a reasonable time to enable the officer to sell.
    When no question was made as to the value of a part of the property sued for in trover, which was taken by executions against the plaintiff, in order to have it deducted from the damages, and the evidence would authorize a verdict for the damages given without that being included, the judgment will not be reversed, if it does not appear from the record that the value of such property was taken into the estimate of damages by the jwy.
    Trover willlie against an officer when property has been taken upon an execution issued upon a judgment void for want of jurisdiction ii} the court rendering it; or against any person receiving the property from the officer.
    It is competent for a plaintiff to go behind an execution and show that there was no judgment or authority to issue it.
    An execution issued against A, and was levied upon his property; B and C agreed verbally to be security fer its delivery, but did not execute a bond; the property was not delivered; an execution was issued against Aj B and C, and levied upon the property of C, when E became, security for its delivery; the property not being delivered, an execution issued against C and E, and was levied on the property of E: Held, that the executions against A, B and C, and against C and E, and the levies under them, .were void for want of jurisdiction in the justice issuing the executions.
    A verbal agreement to be the security of another for the delivery of property levied upon, is not binding, and an execution issued against the person making such promise, is void.
    William Martin obtained a judgment against Matthews before a justice of the peace; an execution issued upon that judgment and was placed in the hands of Jesse Martin, which he levied upon the property of Matthews. Macky and Smith agreed to be.security for its delivery, but executed no bond. The property notbeing delivered, an execution was taken out against the property of Matthews, Smith and Macky, and levied upon the property of Smith. England became the security for Smith in a bond for the delivery of Smith’s property. The bond stipulates that the property shall be delivered at 12 o’clock of the day of sale. It was not delivered at 12 o’clock, but was delivered by Smith after 12 o’clock, before sunset, and whilst bidders yet remained. It was but an hour or two after the time stipulated, that Smith delivered the property. The officer refused to receive it, hut returned the bond forfeited, upon which an execution issued against Smith and England, which execution was levied upon the property of England by Jesse Martin, and by himself and William Martin, the plaintiff in the execution, taken into possession. To recover this property or its value, this action was instituted against both. After the levy of the execution, eight of the cattle levied upon were taken by another execution against England. The proof shows the value of the eight cattle taken hy the execution with some uncertainty. One witness estimates it at'' as much or more than the damages given by the jury, exclusive of the eight cattle; others estimate it at something less than the amount of the verdict. The court charged the jury, that the execution issued against Macky, Smith and Matthews was void; that the justice of the peace had no jurisdiction of them, unless they had executed a delivery bond; that no verbal agreement can be sufficient to charge them; that if that execution was void, it being the foundation of the execution upon which England’s liability commenced, the execution against him was void also; that both William and Jesse Martin were properly sued, if they both took the property into' possession under the execution against England. The court further charged the jury, that the bond of Smith for the delivery of the property did not bind him to deliver it at 12 o’clock; that no such condition could be attached to a delivery bond; that if the property was delivered on the day of sale any time before sunset, and while there were yet bidders, the bond was not forfeited; that all the evidence was before them, and they should weigh it; that if they found for the plaintiff, they should assess his damages according to their opinion of the value of the property converted by the defendants; if they found for the defendants, they would simply say not guilty. The jury returned a verdict for the plaintiff. A motion being made for a new trial, and having been overruled, an appeal in the nature of a writ of error was prosecuted to this court.
   Green, J.

delivered the opinion of the court.

The defendant- was surety for one Smith, for the delivery of property which had been levied on by virtue of an execution against Smith, the bond stipulating that the Pr0Perty was t0 delivered by 12 o’clock on the day appointed. The property was not delivered so soon as 12 o’clock, and the bond was returned forfeited; upon which an execution issued against Smith and England, and the property of England was levied onby Jesse Martin, the constable, and by himself and William Martin, the plaintiff in the execution, taken in possession. England sued in tro-ver for the value of the property. The court told the jury, in substance, that if the property was delivered on the day appointed, before sunset, and while there were yet bidders, although such delivery might have been after 12 o’clock of that day, it would be sufficient, and that the constable had no authority by law, to take the bond for the delivery at 12 o’clock. By the act of 1801, ch. 15, sec. 1, it is provided, that the officer levying an execution shall take the bond for the delivery of the property on the day of the sale. The circuit court correctly construed this act. The officer had no right to stipulate in the bond for its delivery at any particular period of the day. If delivered within a reasonable time to enable the officer to sell, it would be sufficient. It is contended that as eight of the cattle taken by the defendants below, from the plaintiff, were afterwards levied on and sold by virtue of an execution against the plaintiff, their value ought to be deducted from the amount of the verdict. This court cannot determine from this record, whether the jury in estimating the plaintiff’s damages included the value of those eight cattle or not. No exception is taken to the opinion of the court on that part of the case. The jury had the evidence of this levy and sale before them, as well as proof of the value of the whole property sued for. One of the witnesses estimates that value greatly beyond the finding of the jury. They may have taken the highest estimate, and deducting the value of these eight cattle, found the balance. We can determine nothing certainly upon this subject; and we cannot weigh this evidence and determine that the jury have given too much. Had the question been presented by requesting the court to charge upon the subject, then this court could have adjudicated upon it. Perceiving no error in the record, the judgment will be affirmed.

This cause was re-argued upon an application to reconsider the former judgment of this court, when the following opinion was delivered.

Green, J.,

delivered the opinion of the court.

It is insisted with great earnestness, that the judgment in this case is erroneous; that the execution by virtue of which Jesse Martin, the constable, made,the levy, was not void, but only voidable; and many cases are cited to support this position. All the cases cited differ from this. When a court has jurisdiction, and its proceedings are only erroneous and irregular, they are not void. But that was not the case here. The justice had no jurisdiction of the subject, and therefore his execution against Smith is wholly void. But it is said all the papers are not in this record; that it was enough for the constable to produce the execution by virtue of which he made the levy, in order to protect himself in this action. Truly the execution is prima facie evidence that he was authorized to make the levy, but not conclusive. It was competent for the plaintiff below to go behind the execution and show that there was no authority to issue it. This he has done; and surely the onus of proof rested upon the defendants below, to produce the bond, if one was executed by Smith. He has not done so, and we must take the case as this record presents it. As the case is presented by the record, Jesse Martin had an execution against Matthews, in favor of his father, which he levied on Matthews’ property. Macky and Smith agreed to be security for its delivery, but executed no bond. The property not being delivered, an execution was taken out against the property of Matthews, Macky and Smith, and levied "on the property of Smith. England became security in a bond for the delivery of Smith’s property. That not being delivered, an execution issued against Smith and England, and was levied on the property of England, for which this suit was brought. Surely it must be seen upon this statement, that the justice had no jurisdiction to issue an execution against Smith. There was nothing upon which to found it. There was no judgment against him. So far as the record shows the case, there was no delivery bond executed by him as security for Matthews. The execution was issued, from what appears, simply upon the return of the constable, that he was security. If such an execution would protect the constable, wretched would be the state of society. But it is no protection. It is wholly void. But if the execution against Smith was yoid, the levy on his property, the bond executed by England, the execution against England, and the levy on England’s property, are all void and without authority; and the constable in taking England’s property, was a trespasser. It is said Smith does not complain, and that therefore England, who became his security, cannot. Whether these proceedings are void or not, does not depend on the acquiescence of Smith. If void, they can bind no one. The court is satisfied this judgment ought to stand.

Judgment affirmed.  