delivered the opinion of the Court—Cope, J. concurring.

This action was trespass against the defendant as Sheriff, for seizing and taking away certain grain, the property of plaintiff.

1. The first error assigned is that the Court below ordered a special jury to be summoned, instead of trying the case by the regular panel. But there is nothing in this objection. The Sheriff being the party interested, there was an obvious propriety, if the plaintiff insisted on it, in trying the case by a jury, in *124 the selection of which, he had no agency. The statute, (Wood’s Digest, Tit. Jurors, 512, Sec. 16,) seems to leave the ordering of a trial jury to the discretion of the Court, to be governed by its sense of the necessity of so doing. We do not see any abuse of this discretion in this instance. There being no Coroner, the appointment of an Elisor to perform this service was proper.

2. The Court did not err in refusing to instruct the jury that there was no evidence that the sale from Victor Andeque to the plaintiff was accompanied by an immediate delivery of the property, and followed by an actual and continued change of possession thereof. We think the Court would have invaded the province of the jury in giving this chai’ge. There was evidence tending to show that the property in dispute was grown upon the land of plaintiff, and in his possession; that Andeque was only on the land for the purpose of raising and harvesting the crop; that the grain was cut and stacked on the premises; that Pacheco was entitled to one-third by the terms of the contract; that Andeque sold to the plaintiff and delivered possession, and then abandoned the premises, the plaintiff residing thereon; and after the sale, Andeque took no further control, and had nothing further to do on the premises or with the crop, and that the plaintiff assumed the dominion and control of the grain, as he then had of the land on which it grew and was stacked.

Under these circumstances, the plaintiff was not bound to abandon his premises, or carry the grain beyond them, in order to perfect his title as against the creditors of his vendor.

3. Ror did the Court err in refusing the other instruction, which was, that if there was a particular partnership between Andeque and plaintiff in wheat-raising, to end when Andeque had sacked the grain, then a sale before such sacking, and while Andeque (the vendor) had the right to the land where the grain was, could not be a valid transfer and sale if the grain still remained on the land leased, and was not removed to other land or to the actual possession of the plaintiff.

Several objections occur to this instruction. It assumes that there was a leasing of the land, which does not appear in the contract; it assumes that this lease continued, or was to continue, so as to give possession to Andeque of the land, and of that portion of the land on which the grain was stacked; and it *125 ignores the possession by the plaintiff of the premises, and his acts of control and dominion; and, besides, it contravenes the proposition as to the necessity of any other possession than that taken by the plaintiff.

4. We think there was no error as to the rule of damages. If the plaintiff was entitled to recover, ho was entitled to the value of all the'grain taken, and we understand the instruction as given on the hypothesis of his right, as claimed. •

The evidence does not warrant us in holding that the damages were excessive.

Judgment affirmed.