#### Cummings *v.*MacGill.

From Bladen.

Replevin will only lie in the'case of an *actual*taking out, of the possession of the party sueing out the writ.

A delivery by a Sheriff to the purchaser of a slave at an execution sale, of a bill of sale for the slave, there being no adverse possession in another, is a delivery of the slave.

If one at a Sheriff's sale bid for the property, and fails to pay his bid, it thereby becomes void, and the Sheriff may either expose the property again to public sale, or validate and confirm the next highest bid by receiving the money and making a title to the bidder.

*Heplevin*for a slave. — In December 1814, the negro was the property of one Tryon Smith, when the Sheriff having au execution against Smith, levied it on the negro, and on the 24th of December exposed her to sale at Bladen Court House to the highest bidder, she being then present. Defendant was the last bidder at the sum of 8908 15:

The Defendant not having the money, the Sheriff at his request, allowed him until the next day to make payment *;*Defendant failed to make payment on the next day; and a few days afterwards gave to Plaintiff, who *358was the next highest bidder on the 24th, a bill of sale for the negro, without having exposed her to public sale aga.^ goon after, Defendant obtained possession of j[le negr0) by going at night to a place where this negro and others had assembled to dance, and kept possession until she was repit vied.

There was no formal delivery of the slave, made by the Sheriff to either party.

The points relied on in the defence below, were 1st, that the facts did not shew such a taking as would support replevin. 2d, that the property vested in the Defendant when the slave was struck off to him at public sale and a day of payment was allowed him by the Sheriff. 3d, that the sale by the Sheriff to Plaintiff being *private was*therefore void. 4th, that one of Defendant’s pleas being, property in a stranger, Plaintiff could not recover under all the circumstances of the case.

The Court charged for the Plaintiff on all the points and there was a verdict accordingly.

The case stood here on a rule for a new trial.

Tayior, Chief-Justice.

The delivery of the bill of sale to the Plaintiff was equivalent to a delivery of the slave, and it must be considered that he had thereby full and complete possession of the property, inasmuch as she was in the possession of the Sheriff at the time of the sale, and no adverse possession is shewn in any other person, till the period when she was seen in Defendant’s, possession.

I am clearly of opinion that the writ of *replevin*will only lie, where there has been an actual taking out op the possession of the party sueing it, but as the jury were the proper judges whether the taking was proved, and they have found affirmatively upon proper evidence, the verdict is not exceptionable on that score.

As to the title of the slave, I apprehend that the bid made by the Defendant became absolutely void, by his *359failing to pay the money according to the terms given to him by the Sheriff, who then had it in his power either to expose the property again to public sale, or to validate and confirm the next highest bid, by receiving the money and making a title to the bidder. It is true that such bidder could not be bound without his own consent, but when the Sheriff who had the title in him, thought proper to convey it to Cummings, no complaint can justly be made by the Defendant who had doubly forfeited all claim, both by his bidding without money, and neglecting to avail himself of the terms of credit offered by the Sheriff. I cannot therefore but approve of the direction of the Judge on all the points.

DaNIeu, Judge.

I will examine the points submitted to this Court in the order in which they stand in the case sent up.

First, do tl|p facts disclosed in the case, constitute a sufficient *taking*to support this action ?

The negro was in the possession of the Plaintiff, and the Defendant without any authority, went in the night and either by force or seduction, obtained possession of the negro j if it was by force, then all the authorities will support the *action;*if it was by seduction, he deprived the Plaintiff of his possession, the rule of law should be the same. No precedent can be produced, because there is no slavery in England, nor do I know of any case of the kind coming before any of the Courts in this country, but the reason is the same.

The second objection is that the property was in the Defendant by his bid, and time given him to pay, &c.

A bid at a Sheriff’s sale, is an *offer*to pay so much money for the property exposed to sale, not the mere verbal declaration of the party that he is willing to give so *much;*therefore the Defendant could not be considered a bidder, as he did not pay the money. The property could not pass to the Defendant as there was no money *360paid by him, nor any delivery of possession to hitn, 1 *Hayw.*294, 8 *Johns.*520.

The third objection is that the sale of the negro to the Plaintiff was illegal, and did not divest Smith of his property.

The negro was levied on by the Sheriff and taken into the custody of the law, to satisfy the amount of the execution which was against Smith ; the negro was exposed to public sale and was then present; the Plaintiff was the highest *legal*bidder, and although the money was paid and a bill of sale given in a few days after, it did not destroy the bid, but the title passed to the Plaintiff on the payment of the money. It does not appear to us, but that the Plaintiff was ready at any moment to pay the money, so soon as a bill of sale should have been executed by the Sheriff to him.

My opinion is that the Plaintiff is entitled to judgment.