Bales v. Peters

Opinion op the Court by Judge Lindsay: It is not directly charged that Bales was the surety of Wilson in the debt due to Powell. There is, however, some proof conducing to show that he was, and 'it is evident that both parties conducted the action upon that hypothesis. It was the duty of the sheriff, Peters, to sell the personalty levied on by him. He had the right, and it was his duty to sell, with or without, a writ of. venditioni exponas. Colgen vs. Haggins, 1 Duvall 6; Savings Inst. vs. Chinn’s Admr., 7 Bush 542. If lie-permitted Wilson to retain the property, and sell or otherwise dispose of it, and by reáson of such neglect of duty, Bales was com [680] pelled to pay the judgment, he is certainly damaged to the. extent of the value of the property levied on. Lilly, for appellant. Dishman, for appellee. It was erroneous to instruct the jury to find for appellee. The question of fact, upon which appellant's right to recover depends, ought to have been submitted to the jury. Judgment reversed, and cause remanded for a new trial upon principles consistent with this opinion.