#### EVAN BEVAN vs. CHRISTENBURGH J. BYRD.

Where a quantity of unshucked com was levied on by a constable, it was no violation of Ms duty to divide it into small piles and sell it by the pile.

Whether articles levied on have been properly sold, is a question of law, and it is error to leave that question to a jury.

Action on the case, tried before his Honor, Judge Caldwell, at the Spring Term, 1856, of New-Hanover Superior Court.

The declaration contains two counts against the defendant, as a constable, for misconduct in making sale of the plaintiff’s property under an execution. The first count charges that he sold the plaintiff’s property en masse; and the second, that lie sold the plaintiff’s property while the same was absent, thereby causing it to be sold at an undervalue, to the great, damage of the plaintiff, &c.

The evidence on the part of the case considered by this Court was, that the defendant sold some corn in the shuck, supposed to be one hundred and fifty bushels, in five or six piles'oi parcels. Upon this part of the evidence, the defendant’s counsel asked his Honor to charge the jury that the corn was properly sold; he refused to give the charge desired, but told them it was the duty of the officer so to have conducted thr, sale as to make the most money out of the property; to have sold it as a prudent man would Ms own property; that as to the com, he left it to the jury under the rule laid down.

The defendant excepted to this part of the charge. Ten diet for the plaintiff. Judgment and appeal.

Sórcmge, for the plaintiff.

London, for the defendant.

Nash, C. J.

There are two counts in the declaration; the first, for a misdemeanor in the sale of the property en masse; the second for a conversion.

The defendant, a constable, levied upon some corn, fodder, *398peas, cows, cord-wood, a yawl boat, etc., to satisfy an execution in Ms bands against tbe plaintiff, pn tbe day of sale, the corn was in the shuck, and divided into five lots; how. much corn was in each pile the case does not state, but the ■whole is stated to have been one hundred and fifty bushels. It was sold by the pile. The peas were in the pod, and the whole sold together; and so with the fodder. Neither the yawl boat nor cattle were present at the sale.

"When an officer levies an execution upon properly, it is his duty so to conduct the sale as will be most beneficial to all parties. The law points out no particular mode in which an officer shall conduct his sales ; but he is bound by general principles to sell the property in that way which will probably bring the most money. He is the agent of both parties, appointed by the law to conduct the sale, and must act in good faith to both, and both are interested that the articles shall bring the greatest amount of money; particularly is it important to the defendant.

"When various articles are levied upon, they cannot be sold en masse; the officer must conform as nearly as possible to such rules as a prudent man would pursue in selling his own property. Jones v. Lewis, 8 Ire. 70 ; McLeod v. Pearce, et al, 2 Hawks 110. Upon this count his Honor’s charge was incorrect. He was requested by the defendant to charge the jury that in point of law the corn was properly sold; this was refused, and his Honor left it to the jury under the general instructions given in the first part of the charge. Whether the corn was properly sold was a question of law, to be decided by the Court; the facts were solely in the province of the jury. It is similar to the question of probable cause in an action for malicious prosecution; the facts being ascertained by the jury, the Court is to pronounce the law upon them. So in the case of reasonable diligence and reasonable notice.

In our case, the jury ought to h§,ve been instructed that the corn was properly sold by the defendant; that it was legally sold. An officer may sell a field of standing corn, but he is not obliged to gather it. So he may sell a pile of unshucked *399corn. The practiced eye of the experienced farmer can pretty well inform him of the quantity of corn, both in the field and in the pile. A man may sell an ox or hog in a pen, but he is under no obligation, unless he contract to do so, to butcher the animals. The purchaser’s eye is his chapman.

As there must be a venire de novo, it is unnecessary to take notice of the charge on the second, count.

Per Curiam.

Judgment reversed, and veni/re de novo.