#### THE STATE ON THE RELATION OF TURNER CULBERSON *vs.*SILAS MORGAN.

An execution upon a dormant judgment is not void. It is only irregular ; and.that is an objection, which can only be taken by the defendant in "the execution — and not by the officer to whom it is directed, who is bound to serve it. "

It is the duty of an officer to sell property levied on, in a way to bring the best price, unless the parties interested consent that the sale may be made in a different way.

The ease of *Dawson*v. *Shepherd,*4 Dev. 497, cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at a Special Term in June 1845, his Honor Judge Caldwell presiding.

This action is debt on the official bond of the defendant, as a constable, and the breach is a false return of *nulla bona*on a *-fieri facias,*issued by a Justice of the Peace on a judgment in favor of the relator against one Sharp. Plea, conditions performed. On the trial the relator gave evidence, that, after he delivered his execution to the defendant,'the latter sold a waggon and team, consisting of five mules, and their gear, in mass, for the sum of $138; which was less than their value, and that he did not apply any part thereof to the relator’s satisfaction. The defendant then showed, that the judgment had been rendered a little more than a year before the execution issued ; and thereupon his counsel insisted, that he was not bound to act on the execution. But the Court held, that the defendant was bound diligently to serve it. The defendant then further gave evidence, that, when he received the execution in favor of the relator, he had seized the waggon, gear, and team, (amongst other things,) on executions in favor of other creditors of Sharp; and that by the agreement of some of those creditors, who were present at the sale, he offered that property in mass, and *390it brought the sum before mentioned, which was applicable to the prior executions. The Court thereupon told the jury, that the sale was unlawful, as it was the duty of the officer to sell the property in a way to bring the best price, unless the relator consented to a sale in that mapper. The jury found against the defendant, and after judgment he appealed.

*Francis,*for the plaintiff.

*J. W. Woodfin,*for the defendant.

Ruffin, C. J.

An execution upon a dormant judgment is not void. It is only irregular; and that is an objection to be taken by the defendant in the execution. It does not lie Avith the sheriff to raise it. The process justifies him, and therefore he is obliged to serve'it. The case of *Dawson*V. *Shepperd,*4 Dev. 497, is in point.

The duty of the officer, as to the mode of sale, was correctly stated to the jury, as the counsel for the defendant admits. But he insists, that the Judge erred in undertaking to assume, as a fact, that the articles sold for less, when put up together, than they would, if offered ' separately. The Court would concur readily in that position, if that point of fact had been disputed on the trial, and the Judge had undertaken to decide it, instead of submitting it as an enquiry for the jury. But it is obvious, that was not the case. The very low price, being but little, if any, more than the value of a good waggon, prevented the defendant from contending before the jury, that more would not have been got, if more competition bad been admitted by putting up the articles separately. Therefore, instead of doing that, he took another position: which was, that some of the creditors selected that mode of sale, and that was sufficient for his justification. So it was, as to those creditors who directed it. But it was not, as to those creditors who were absent, and who suffered prejudice by that manner of selling ; and of the *391latter class was the relator. But, plainly, that defence yielded, that a different mode of selling might or would have brought a better price, especially as the defendant gave no evidence to the contrary, nor insisted thereon in argument. Although it would have been erroneous not to have left that point to the jury, if it had been asked, or if the defence had not imported, that the defendant did not dispute the matter of fact; yet it is not error in the Judge to have assumed as true, what the defence itself, thus either expressly yielded, or was what plainly to be inferred from it. The objection was not taken at the trial and fairly presented to the Court, but is a mere after-thought and catch at the Judge’s words, taken abstractly and without reference to the state of the case in which he used them, and as such it cannot be sustained. As no question was made upon the amount of damages, we take it for granted, they were assessed upon the principle of allowing the relator what he would have received, if the sale had been properly conducted, and after satisfying the prior executions: for he was entitled to no more.

Per Curiam. Judgment affirmed.