¶1Suit upon a note. Pleas of payment, set-off, &c. Issues. Trial. Judgment for the defendants.
¶2*187The errors assigned are, that the Court erred in sustaining the demurrer to the plaintiff’s reply; that the Court erred in giving and refusing instructions, and in overruling the motion for a new trial.
¶31. The overruling of the demurrer was not excepted to.
¶42. The record does not contain all the evidence. It states that evidence was given tending to prove such and such facts, but it does not set out the evidence. Hence, we cannot tell whether the evidence proved the facts or not, nor whether the Court below should have granted a new trial. The bill of exceptions, it is true, closes thus: “which was all the evidence in the cause;” but as the bill does not contain the evidence, as its whole tenor shows, the closing assertion cannot be regarded as true. To say that evidence was given tending to prove the plaintiff’s case, which was all the evidence in the cause, is only to say that the only evidence given was that which tended to prove the plaintiff’s case; but whether it was sufficient for the purpose, we could not, on such statement, judge.
¶53. The instructions given and refused, present all the questions raised by the motion for a new trial. They read thus:
“ In relation to the two yoke of oxen charged in the defendant’s set-off, the jury will determine from the evidence when and in what manner the oxen came to the plaintiff’s possession. If the oxen were levied upon by a constable, by virtue of an execution in favor of Woodruff against Hoard, the principal defendant in this suit, it will be important to determine whether Hoard, on being required by the constable, did designate the oxen to be levied on by virtue of such execution or not; because, if the judgment was rendered and execution levied at any time while the H. S. of 1843 were in force, and the oxen were designated by Hoard to be levied on by the constable, then they might be sold at any sum not less than two-thirds of their appraised value; whereas, if the oxen were not so designated by Hoard, but were designated by Woodruff, or taken by the constable without being designated by either party, *188then the constable had no authority by law to sell the oxen for less than their fair value, as ascertained by appraisers, and any sale for a less sum would be without authority of law, and void. If the plaintiff, Woodruff, was the plaintiff in the execution upon which the oxen were sold by the constable, he was bound to know that all the proceedings of the officer up to the sale were legal; and if the sale was a void one, and the plaintiff took the oxen, and converted them to his own use, he would be liable to pay Hoard for the oxen; and, to recover the value of the oxen, Hoard may waive the tort and sue for the oxen as sold and delivered, or he may set up the value as set-off in this action, if Hoard is the sole principal in the debt now sued on by Woodruff."
¶6The plaintiff excepted to the above instructions, and asked the Court to give the following:
“If the jury believe, from the evidence, that the yoke of oxen mentioned in the answer were levied upon by virtue of an execution, sold by the officer, and bid .off by the plaintiff, (in that suit the execution-plaintiff) then their value could not be set off in this action by the defendant, even though the officer acted improperly, and sold them for two-thirds, instead of their full value.”
¶7Which instruction the Court refused to give, and the plaintiff excepted. We presume, in favor of the action of the Court- below, that the execution sale was upon a judgment on a contract under the appraisement laws.
¶8Without meaning to sanction every expression in the above instruction which was given, we cannot say the defendant can complain of it. See R. S. 1843, p. 1046, s. 9.
¶9Morss v. Doe, 2 Ind. R. 65, decides that an execution sale, for less than the sum required by the statue, is not merely voidable, but absolutely void. And it seems, according to Chitty, (1 vol. Pl. p. 100) that assumpsit will lie for the value of property so sold. The tort, if tort it properly can be called, may be waived.
¶10If the instruction given was unobjectionable, that refused, of course, should not have been given.
¶11The judgment is affirmed with costs.