
    Manlove Adams v. Thomas Coates.
    If a Constable sells goods on the day of sale under an execution, against the order of the plaintiff in it, given to him in the hearing of bidders, not to sell them, the sale will be null and void.
    Replevin for a yoke of oxen, with the usual pleas. Thomas Coates, the defendant, had recovered a judgment against William Jester before a Justice of the Peace, on which an execution had been issued and levied upon the oxen in question June 20th, 1863, and on which they were sold on the 6th of September following, and bid off by Manlove Adams, the plaintiff, at the sale, for $8.25. The Constable proved the sale to him, and that he sold them pursuant to the order given him that day by the plaintiff in the execution, who was present at the sale, but both he and Jester the defendant in it, had informed him that day, that Coates then claimed to own them. Jester held the oxen at the time of the levy upon them under a written contract with another, to the effect that the latter had delivered them to him under an agreement to sell them to him for the sum of fifty dollars, the oxen to-be Jester’s when paid for, but not before, and by which the latter agreed to return them whenever requested, if he did not pay for them by the 1st of January, 1863, and upon which was credited a payment made by him of $42, on the 16th of February, 1863. On the 6th of July following, Coates paid to the other party to the agreement, $13, the balance of the principal and interest then due upon it, and took a written assignment of it from him, and after that, but before the sale, each of them had apprised the Constable of these facts and had ordered him not to sell them under the execution. It was also proved that Coates on the morning of the sale had again ordered him not to sell them.
    
      Layton and Cullen, for plaintiff.
    
      Robinson, Sr., and Robinson, Jr., for defendant.
   The Court, Gilpin C charged, the Jury:

That the evidence in regard to the order or instructions of Coates to the Constable on the day of sale, seemed to be conflicting, but if they were satisfied upon all .the testimony which they had heard on that point, that Coates who was the plaintiff in the execution, had ordered the Constable on the day of sale and in the presence of the bidders who had an opportunity of hearing it, not to sell the yoke of oxen in question, the sale was null and void, and the plaintiff in the action would not be entitled to recover. But if he ordered him to sell them, or was present at the sale and gave him no orders to the contrary, then their verdict should he for the plaintiff.  