#### SILAS McNEELEY *vs.*SAMUEL HART.

Articles of personal property, sold under execution, must be actually present, but they need not be literally in the sheriff’s hands or directly under his hammer'; it is sufficient if they are in such a situation, that the bidders can see them and have an opportunity of examining their quality and value.

Upon the facts stated in evidence, the Court should instruct the jury, if they believed the evidence, as a matter of law, that such facts did or did not make the property legally present. The Court should not leave that con* elusion to the jury as a matter of law. •

The fact, that an article of personal property had been previously, on the same day, shewn to the bidders, cannot avoid the effect of their absence at the time and place of the sale.

The sale must be conducted in such a manner, that every person, who may come up before the article is knocked down by .the auctioneer, may see and examine it, so as to enable him to become a bidder, if he choose.

The cases of *Hollowell*v. *Skinner, 4*Ire. 165, *Ainsworth*v. *Greenlee,*3 Mur. 470, *Smith*v. *Tritt,*1 Dev. & Bat. 241, and *Skinner*v. *Skinner,*4 Ire. 175, cited and approved.

Appeal from the Superior Court of Law of Iredell County, at the Spring Term, 1848, his Honor Judge Manly presiding.

This was action of trover for the conversion of a quantity of corn and oats. The defendant pleaded not guilty, and, upon the issue thereon joined, the case was tried at Iredell, on the last Circuit.

The plaintiff claimed title to the property in question under a conveyance which, it was admitted, was void as against creditors and purchasers. The defendant claimed by purchase at a Sheriff’s sale, made subsequently to the conveyance to the plaintiff, under certain executions against the vendor. It was contended for the plaintiff, that the sale made by the sheriff was irregular and void, and that therefore the defendant was not such a purchaser, as could avoid the plaintiff’s conveyance. The tes*493timony to show this was, that the corn was sold in a field, only a part of which was visible from the point where the sale was made, and that the oats were sold by the bundle, lying in a barn upon the premises, at the distance from the place of sale of several hundred yards, according to one witness, or of a quarter of a mile, according to another. There was further testimony that other property was sold on the premises upon the same occasion, and that the bidders had had an opportunity of examining the oats and corn, which had been pointed out to them.

The Court instructed the jury that to make a sheriff’s sale of personal chattels valid, it was not necessary that the sheriff should have them literally in his hands or under his hammer ; it was sufficient if they were present in such a situation that the bidders could have a fair opportunity to inspect and examine them, and to ascertain their quality and value. The Court then left the validity of the sale to the jury, as a question of fact, and instructed them, that, if the sale were found to be valid upon the principles above stated, they should find for the defendant; otherwise for the- plaintiff. A verdict was returned for the defendant, and from the judgment rendered thereon . the plaintiff appealed.

*Osborne,*for the plaintiff

*Clarke,*for the defendant.

Battle, J.

There can be no doubt, that, if the sheriff’s sale, under which the defendant purchased, were void, the plaintiff was not bound by it. Iiis donor could certainly have taken advantage of it, and he, claiming from the donor, and standing in his place, must have had the same right. *Hollowell*v. *Skinner, 4*Ire. Rep. 165. The question then arises, whether the sale, at which the defendant purchased, was void. It is attacked upon the ground, that the articles sold were not present at the time and place of the sale. The presiding Judge held properly, that they must be present, and equally so, that *494they need not be literally in the sheriff’s hands or directly under his hammer — that it was sufficient, if they were in such a situation, that the bidders could see them and have an opportunity of examining their quality and value. *Ainsworth*v. *Greenlee,*3 Mur. Rep. 470, *Smith*v. *Tritt,*1 Dev. & Bat. Rep. 241 ; but he erred in leaving, as a question of fact to the jury, what he ought to have decided himself, that, if they believed the testimony to be true, the oats at least were not present according to the principles, which he had so clearly and properly laid down. According to the testimony of one witness, the oats were in a house on the premises, several hundred yards, and according to another a quarter of a mile from the place where the sale was made. The bidders could not at the moment see them, nor examine their quality and value, and of course were invited to bid in ignorance of these essential particulars. Nor can the fact stated, that the articles sold had been previously on the same day shewn to the bidders, avoid the effect of their absence at the time and place of the sale. For that must be conducted in such manner, that every person, who may come up be fore the articles are knocked down by the auctioneer, may see and examine them, so as to enable him to become a bidder if he choose. To hold otherwise would be to give some of the persons present an advantage over others, and thus prevent that fair and open competition, which the law so much desires in sales of this kind. For the error of the Judge in failing to instruct the juiy on a question of law, material to the plaintiff’s claim, which was presented by the testimony, there mnst be a new trial. This renders it unnecessary that we should consider whether the sale of the corn was valid.

Indeed the facts respecting the sale of that article are not stated with sufficient fullness and precision to enable us to decide that question. The case does not mention whether the corn was standing or lying in heaps in the field, when.it was sold, whether it was sold all together, *495or by the bushel or other measure, nor how much of the field could be seen by the bidders from the spot where the sale tools: place. It was not necessary that the sheriff and bidders should have been in the field or immediately at it, *Skinner*v. Skinner, 4. Ired. Rep. 175, but they ought to have been in such a situation, that they could see the probable quantity and quality of what they were called upon to buy. These facts may be ascertained upon the next trial, when the Court will be prepared to pronounce the law applicable to them.

The judgment must be reversed and a *venire de novo*awarded

Pbr Curiam. Judgment reversed and *venire de*novo.