
    James Vincent, vs. Abm. Perry.
    . Trover. Defendant, a sheriff, levied on two slaves, under executions. After the levy, the owner sold them to Plaintiff, suh-~ jeet to the sheriff’s lien. Plaintiff offered to pay the amount of the executions, hut made no tender. Defendant f fused to deliver up the slaves, and afterwards sold them. • Held that the action would not lie.
    
    This was an action of trover, for- two- slaves. It appeared in evidence that the defendant, as sheriff of Lancaster district, had levied two executions on the negroes in question. While they were thus under executions, the owner sold them to plaintiff in this action, subject to the lien which the sheriff had on, them.
    Previous to the day of s.ale, the plaintiff offered to pay the- money due on the executions, provided the sheriff would .deliver up the negroes to him. The sheriff said he would re ceive the money, but would not deliver up the negroes: He ■had some other lien on them, but what it was, did-not appear to the court. They were afterwards sold under the executions. There was no actual tender of tbe money to the sheriff nor was it brought into court. When the testimony was closed, it was •submitted to tho court whether the plaintiff had supported his action. '
    The presiding judge, being of opinion that the evidence was not sufficient to maintain the action, ordered a non-suit. This was a motion to set aside that non-suit.
    
      Clendenin and Hill, for motion.
    -jS. D. Miller, contra.
   The opinion of the court was delivered by

Mr. Justice Jiott.

The sheriff had a right to the negroes until the money was actually paid, — and until then, the plaintiff had no right to demand them. The sheriff was under no obligation to make any terms with him. If the money had been tendered, it would not have placed him in a better situation; for nothing - but actual payment would have released them from the lien by which they Were held.. The motion therefore must be refused. -

Johnson, Richardson, Gantt and Huger, justices, concurred,,  