
    John B’Hymer v. Reuben Sargent.
    1. A sale,- by a constable, of property seized in execution, pending a trial, under the statute, of the right thereto, before a justice of the peace, will not1 oust the jurisdiction acquired by such justice, but he may proceed to a final-hearing, as if such sale had not been made.
    2. Where such trial was set for the day preceding that fixed for the sale, and-the justice, for causes satisfactory to himself, continued the hearing until the succeeding day, the cause may still proceed, though not terminated until after the sale.
    3. The proceeding before the justice is a summary one, and not triable by a-jury; but the party at whose instance such jury was impanneled, can not complain that it was submitted to them.
    •4. The justice in such proceedings has no authority to render a judgment in favor of the claimant for the property; but as such judgment could do no possible injury to the plaintiff in execution, or the constable, such a judgment cans not be reversed on error.
    Error, to the district court of Clermont county.
    
      Reuben Sargent, on tbe 4th day of August, 1856, claimed, from Moses Gardner, constable, a mare and colt, which had been seized in execution by said constable, as the property of Israel Anderson, to satisfy a justice’s judgment in favor of plaintiff in error, and against said Anderson; which said property was advertised for sale by said constable, on August 12, 1856.
    The claimant gave due notice to the said plaintiff in execution, of the trial of the right of property in said mare and colt, to be had on the 11th day of August, 1856, before Decatur Wylie, Esq., another justice of the peace of said township.
    On the day set for trial the parties appeared, and the plaintiff in error demanded a jury, and a panel was thereupon made up of six jurors, and the justice issued a venire for the jurors selected, returnable the next day (being the day of sale), to which said claimant objected, as not leaving a day to intervene between the day of trial and the day of sale, and insisted that the trial should proceed forthwith. Parties met on the 12th of August, 1856, and the case was submitted to a jury, who, on the 13th day of August, returned a verdict in favor of the claimant; and, thereupon, said justice rendered a judgment in favor of the claimant, and one for costs against the said plaintiff in execution; and upon the 14th day of August, issued his order to said constable to restore said property to the claimant.
    It appears from a bill of exceptions taken by the plaintiff in error, that the property about which the trial was had, was sold while the trial was progressing; and it further appeared that after the evidence was closed, the plaintiff in error requested the court to charge the jury that the claimant could not recover, unless they were satisfied from the evidence that the trial was had at least one day prior to the time appointed for the sale of said property; which charge the said justice refused to give, and the plaintiff in error excepted.
    Said judgment of the justice in favor of the claimant, and against the plaintiff in error, was affirmed on error in the •court of common pleas, and re-affirmed in the district court •of Clermont county, and the present petition in error is ■prosecuted to reverse these judgments of affirmance.
    
      Penn, Johnston Penn, for plaintiff in error.
    G. W. Dennison, for defendant in error.
   By the Court.

In Armstrong v. Harvey, decided at the present term (ante p. 527), it was held that, in trials of the right of property seized in execution by a constable, a finding and judgment in favor of the claimant, is not conclusive, •as between him and the constable, of the claimant’s right to the property embraced in the finding and order. It was also there held, that the constable, if he is willing to take the responsibility, may disregard the order of the justice, and sell the property to satisfy the execution, and that, in such case, the constable is not thereby precluded from contesting the title of the claimant. In the present case, the constable, in disregard of the proceedings before the justice, and while •they were still pending and undetermined, sold the property upon the execution as he might do, for the reasons assigned in Armstrong v. Harvey, supra.

The proceedings before the magistrate were rightfully commenced, and the subsequent act of the constable, in selling the property, could not divest the jurisdiction thus acquired, .and the justice might proceed, as the sale left the question of •costs still open and undetermined.

The proceeding under the statute is a summary one, to be tried by the justice, and not in any just or legal sense “ a ■civil action,” and, therefore, not properly triable by a jury. But of this the plaintiff in error can not complain, as the jury was impanneled at his instance and request. Under the statute, a day ought, regularly, to intervene between the time of trial and the time fixed for the sale of the property; but where the trial, as in this case, was set for the day before the sale, and its final termination was delayed by the action •of the claimant, or by reason of the protracted character of tbe investigation, until after the day set for trial, the justice-may hear and determine the case, even though the property has been sold.

The constable might properly decline to sell while the in- - vestigation was still pending, as the proceeding is designed-mainly for his protection, but he need not do so if he is willing to take the responsibility.

The effect of the judgment in such cases, is settled in the • case of Armstrong v. Harvey, and the judgment of the justice in this case, finding the right of property in the claimant, though not warranted by the statute, could do no possible injury to the plaintiff in execution, or to the constable, and-as it does not, in any way, conclude their rights, it, therefore, does not constitute a ground for its reversal.

Judgment affirmed.  