1. Theré is nothing in the record shewing any possibility of • damage to plaintiffs in error, on account of calling the case by .the Court out of its regular order; or because, a short time ¡previous, leave of absence had been granted to their counsel. *283It was not claimed that the attorney or clients were less prepared for trial than they would have been, had such leave not been granted, or than they would be, if the case were not then called.
2. The mere fact that an affidavit of illegality is based on grounds that are not good in law, or that it is filed under the provisions of an Act of the Legislature, which is finally pronounced unconstitutional, does not prevent the plaintiff in execution from claiming damages, if it be made to appear on the trial, that it was interposed for delay only. If it is filed with the sheriff, as an affidavit of illegality, accepted by him, as such, and the sale thereby arrested, and it is returned into Court, is heard and tried as other like cases are tried, and the jury find that it was the purpose of the defendant to secure delay only, a case is made for damages. If the grounds set forth be not only not good in law, but not true in fact, and the defendant could have had good reasons, if he had made inquiry of the sheriff as to the papers in the case, then lodged with him, to believe that the grounds were not true, and still prosecutes his affidavit to trial, and does not offer any evidence to sustain even the truth of his allegations, he is clearly liable to the penalties prescribed for the filing of affidavits of illegality for delay only.
3. It is contended that the verdict of the jury being simply, “We, the jury, find for the plaintiffs ten per cent, damages,” was illegal, because it did not cover the whole issue, in this, that it did not find that the taxes had been paid. In the case of Mitchell vs. Cothran & Elliott, decided at the January term, 1873, not yet reported, it was held, that a verdict of a jury finding that the taxes on a debt contracted before June 1st, 1865, had not been paid, is on an immaterial issue, * * * and that it was error in the Court to dismiss the plaintiff’s action for such non-payment. If such an issue be immaterial, it was not necessary for the verdict to contain a finding upon it. The only legal issue that could have been before the jury in this case, was, did defendants interpose the affidavit for delay only ? In finding damages, the jury decided affirma*284tively on that issue. The verdict legally implies that fact, and it covers the whole issue.
Judgment affirmed.