
    CUMMINGS against MAC GILL.
    Replevin ported ^unless a taknig' is pioved.
    REPLEVIN for a slave which was the property 0? Tryon Smith, in Dec. 1814, when the Sheriff of Bladen1 made a levy on her, by virtue of an execution against said Smith ; and at public sale set her up to the highest bidder at the court house in Bladen, on the 24th of the same month, when she was struck off to the Defendant, the last and highest bidder, at the price of &90 15, the slave being then present. The Sheriff then, at Defendant’s re-qu st, gave him an indulgence for the payment of the money until the next day. The Defendant having failed to pay the money to the Sheriff when called on the next day, for that purpose, agreeably to their previous arrangement, the Sheriff soon after executed a bill of sale for said slave to the Plaintiff, and delivered the negro slave to him, he being the next highest bidder, without having again exposed the slave to public sale to the highest bidder. Soon after, the slave being found in the possession of the Defendant, who refused to give her up on the demand of the Plaiutiff, this suit was instituted. The charge of the Court being in favour of the Plaintiff, a Verdict was found accordingly. Motion for a New Trial on behalf of Defendant, upon the ground that the charge pf the Court was against law, &c. Motion overruled. From which Judgment, an Appeal is taken to the Supreme Court.
    Questions for the consideration of the Supreme Court:
    1st. Is the action of Replevin sustainable in this State ?
    2d. Had the Sheriff a right to adopt the bid of the Plaintiff, after having regularly struck off the slave to the Defendant, as the last and highest bidder, without having again exposed her at public sale to the highest bidder ?
    3d. Did not the time given for the payment of the money, confirm the sale to the Defendant, and vest thg property in him ?
    4th. Did th$ right of the slave legally vest in the Plain-, tiff, under all the circumstances as above stated ?
    Henry, for the Apellant,
    took the following positions : 1.That in this action, the Defendant may plead property jn a stranger.
    
    2.The title was in the Defendant, because a day of payment was given by the Sheriff.
    
    3. That the sale to the Plaintiff was void, because private.
    
    4. That Replevin cannot be maintained, unless a forcible taking is proved 
    
    
      7>liMillan, for the Appellee,
    contended, that the property vested in the Plaintiff, as well by the delivery of the Sheriff to him, as because the Defendant could not confirm the bid he made by the payment of the money J this rendered it a nullity, and the Sheriff tyas bopnd to notice the next highest bid.
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    Tire action may be sustained for any illegal taking.
    
    
      
       1 Salk. 94. 1 Johns. 94 Rep. 384. Gibb. Rep. 127.
    
    
      
      
         2 Com on Cont 210 Noy's Max. 105.
    
    
      
      
        Conf Rep. 551.
    
    
      
      
        Schoale & Lefroy's Rep.
      
    
    
      
       1 Hayw. 293.
    
    
      
      
        Cro. Eliz. 824. Cro. Jac. 50. C. 145-6.
    
   Seawell, J. ‘

delivered the Opinion of the Court:

When one individual attempts to become “ his own carver,” anjl takes from the possession of another perso* nal property, he is usurping an authority; and the law, to prevent the possibility of his being benefited by his own wrong, will compel him to restore the possession, and then shew the right he had for the exercise of this summary justice. This restoration is effected by the action of Re-plevin, and in no case will it lie, but where there has been a taking. In all other cases, the party in possession shall retain it, till recovered by a Court pronouncing upon the title. In this case, the slave is stated to have been found in Defendant’s possession : How the Defendant acquired such possession, does not appear, and we must be making ii|!&se to suppose, that the Defendant acquired it by a trespass. We are, therefore, of opinion, that the rule for a New Trial should be made absolute.  