
    Sanderson’s Ex’rs. vs. Marks.
    June, 1827.
    A surety in .a replevin bond is not a competent witness for the plaintiff in replevin.
    The bill of sale pf a sheriff for chattels levied on and sold by him, is impro, per testimony in itself, however it may be considered, accompanied by proof of the sheriff’s authority to sell the property it professed to convey.
    All the testimony offered by the plaintiff, who sued as executor, being rejected by the court as incompetent, and the defendant having given in-evidence declarations of the testator, tending to prove the plaintiff’s claim, it is a proper case for the jury to consider and decide, and the court have no right to instruct the jury that the plaintiff was not entitled to recover.
    The declaration in replevin should not include any property not taken under the writ of replevin.
    If a father, as natural guardian of his child, was in possession of a slave at the time of a gift of the slave by the owner to the child, it was such a possession as was required by the act of 1763, ch. 13, s. 3, to make it a valid gift, and passed the properfy without any further delivery by the dopof’.
    Appeal from Saint-Mary’s County Court. This was an Action of replevin for sundry goods and chattels, and a negro boy named Jack. The replevin bond was executed on the 23d pi O.ctober 1821, by Gerard N Causin, and others, to the defendant, (now appellee,) for prosecuting the writ of replevin in the name of the plaintiffs’ testator, The defendant pleaded, 1. Property in himself, and 2. Property ín on.e Sophia Marks. Issues were joined on the general replications tq those pleas. The death of Sanderson was suggested, and the plaintiffs ap.peared as his executors, .exhibiting letters testamentary to them granted, &c.
    • 1. At the trial the plaintiffs offered to read in evidence a bill of sale from John Stevenson, sheriff of Baltimore county, to Michael Sanderson, (the plaintiffs’ testator,) executed on the 12th of October 1819, for sundry goods and chattels, and a ner gro boy named Jack, stated to have been seized by Stevenson. .as.-the property of William Marks, under an execution, issued at the suit of William Riley against the lands, &c. of Marlas, and by Stevenson sold at public auction to Sanderson for $512. The bill of sale appeared to have been acknowledged by Stevenson before a justice of the peace for Baltimore county, and. recorded the same day among the records of that county. To the admissibility of which the defendant objected; and the Court, {Key, and Plater, A. J.] were of opinion that it was inadmissible, and refused to permit it to be read in evidence to the jui y. To which opinion of the court the plaintiffs excepted.
    2. The plaintiffs then read in evidence the following deposition, (admitted to be read so far as the same was competent testimony,) viz. “G. N. Causin, attorney for the plaintiffs, makes oath, that he believes the plaintiffs cannot proceed to the trial of the said cause with justice to themselves, at this term; that John Stevenson of Baltimore county, is a competent witness in said cause, and he has reasonable expectation that his attendance can be procured by the next term; that he believes the said witness will prove the plaintiffs’ testator to have maintained through life a fair and upright character; that at times he, (the plaintiffs’ testator,) was in the habit of vaunting of his benevolent actions; and that the boy Jack, mentioned in the declaration, is the iSame boy mentioned in the bill of sale filed in the cause from John Stevenson, sheriff of Baltimore county, to the plaintiffs’ testator.” The plaintiffs further gave evidence by Gerard N. Causin, that he heard the defendant, after the said pegrp, in the declaration mentioned, was taken by virtue of the replevin issued in this cause, say that it was strange that the plaintiffs’ testator should replevy the said negro; for ah though he had bought the said negro, yet afterwards he had given him to his, the defendant’s daughter Sophia. The defendant then gave in evidence the following deposition, taken by consent of the parties in this cause, and admitted to be read in evidence, so far as the same was competent, viz. “dlquila Carroll, of Baltimore county, deposeth and saith, that he well knew Michael Sanderson, in his lifetime, and has heard him say that he had set Marks on his legs, that they had taken all of his property even to a bed, and that they had taken it for house rent, or debts, but for which he cannot now recollect; and that he had given all the property, and a negro boy which formerly belonged to Marks, the defendant, and which he had bought at a sale of Marks’ property by the sheriff of Baltimore, to Marks’ daughter Sophy, and that he gave them to his daughter to prevent his creditors from again taking them; and that this statement he had frequently heard him make.” To interrogatories put to the witness, by the defendant he answered, 1. That the above conversation took place shortly after the .Occurrence took place. 2. Sanderson said that the boy and property of Marks, seized and sold by the sheriff, was bought and paid for by him. 3. Sanderson said be had bought the property for the sake of Marks’ family, but said nothing about the delivery. 4. Sanderson did not say he was in debt to Marks. 5. Sanderson had no family or any relations, to the knowledge of the witness — He believed he had relations in Europe. 6. He has known Marks for 15 or 20 years. 7. He cannot say that at the time of the conversation before mentioned with Sanderson the negro boy and property were in possession of Marks, and úsed by him then and afterwards. 8. He does not know how long Marks remained in Baltimore after the sale of the boy and property. He does not think it was many months. Marks’ daughter was between the age of 15 and 20 years, and then was living with her father. 9. He does not know that a great intimacy existed between Sanderson and Marks. The defendant then offered in evidence the replevin bond filed in this case; and it was admitted that Gerard N. Cousin, in the said bond mentioned, and the said Gerard N. Causin, who gave testimony as mentioned herein, was one and the same person. The defendant then prayed the court to instruct the jury, that the testimony of Causin was illegal and not to bé regarded by them; of which opinion the court were, and so instructed the jury. To which the plaintiffs excepted.
    3. The plaintiffs then prayed the court to instruct the jury, that if from the testimony they should be of opinion that the ■plaintiffs’ testator purchased the said boy Jack at the sale of the defendant’s property by John Stevenson, sheriff of Baltimore county, that then, to make a gift of said boy from San
      
      derson to Sophia Marks good and valid in law, the same must be accompanied by a delivery of possession, or established by a bill of sale from Sanderson to Sophia Marks, acknowledged and recorded agreeably to law. But the court refused to grant the said prayer; but instructed the jury, that if they Should be of opinion that the said negro boy was in possession of the defendant, as natural guardian to his daughter, then it was such a possession as is required by the act of assembly. To which refusal and opinion of the court the plaintiffs excepted. •
    4. The defendant then prayed the court to instruct the jury, that from the preceding evidence the plaintiffs were not entitled to recover the said boy in the declaration mentioned. Of Which opinion the court were, and so instructed the jury. The plaintiff excepted, and the whole of the preceding formed one bill of exceptions. Verdict as to the first issue, that the property in the said goods, &c. at, &c. was not in the plaintiffs; and the same verdict as to the second issue. Judgment was rendered thereon for the defendant; and the plaintiffs appealed to this court.
    The cause was argued before Buchanan, Ch. J. and Earle, Martin, Stephen, Archer, and Dorsey, J.
    
      Magruder, for the Appellants,
    contended, 1. That the bill of sale from, the sheriff of Baltimore county ought to have been read in evidence. 2. That the court erred in not instructing the jury that if they should be of opinion from the evidence, that the plaintiffs’ testator purchased the boy Jack, for which this action was brought, then to make a gift of said boy from the testator to Sophia Marks good, there must be a delivery of the property, or a bill of sale recorded, according to law. 3. That the court erred in instructing the jury that the evidence did not entitle the plaintiffs to a verdict. He referred to the act of 1763, ch. 13, s. 3.
    
      C. Dorsey, for the Appellee.
   Earle, J.

delivered the opinion of the Court. The dispute between the parties in this case is about the right of property in a negro boy named Jack. The replevin issued for sundry other Chattels, but they were not replevied by the' sheriff, nor noticed by hirft in his return of the writ. They nevertheless very inaccurately appear in the declaration; and their caption and detention being complained of, they are embraced in the pleas filed by the defendant, and in the issues tried in the cause; These pleas and issues are; that the property in these goods and chattels, and negro boy, is in the defendant and not in the plaintiffs; and that the property in the saifié goods and chattels, and hegro boy, is in Sophia Marks, the daughter of the defendant; and not in the plaintiffs. On the trial of these issues, the court below signed a bill of exceptions, which comprises four several opinions delivered by them. - Two on the inadmissibility of evidence, and two on the distinct prayers of tbe plaintiffs and defendant. In tbe tw'o first, we entirely concur with the court.

G. N. dáiisin, having been a security in' the replevin bond, was certainly an incompetent witness to testify for tbe plaintiffs; and the bill of salé signed by tbe sheriff, Stevenson, was unquestionably improper testimony in itself, however it might Have been considered, if it bad been accompanied by proof of the sheriff’s authority to sell the property it professed to convey.

The prayer on the part of the plaintiffs, the court refused to grant; but they expressed an opinion thereon, in which we coincide. They, in substance, instructed the jury, that if they should be of opinion the defendant; as natural guardian of his daughter, was in possession óf the negfo boy at the time of the gift, then it was such á possession as was required by the act of assembly to make it a good or valid gift, and pissed the property to her without any further delivery by thé donor.

The prayer on the part of the defendant, wis answered by’ art instruction to the jury, “th'it from the preceding testimony the plaintiffs were not entitled to recovery the negro boy in the declaration mentioned.” All the evidence on the part of the plaintiffs had been rejected by the court, and the words predating evidence can apply only to the testimony introduced into the cause by the defendant himself. This is to be found in the deposition of Aquilla Carroll, who deposed that lie had beard Sanderson say, he had set Marks on his legs; that they had taken all his property, even to a bed, and that they had taken it for house rent or debt, but for which, the witness could not at that time recollect; and that he had given all the property, and a negro boy, which formerly belonged to Marks, the defendant, and which he bought at a sale of the said Marks’s property by the sheriff of Baltimore, to the said Marks’s daughter Sophy, and that he gave them to the daughter to prevent his creditors from again taking them; and that this statement he had frequently heard him make. To further interrogatories on the part of the defendant, Jlquila Carroll answered, that the conversation with Sanderson alluded to, took place soon after the occurrence; that Sanderson said the boy and property of Marks, seized and sold by the sheriff, Were bought and paid for by him; that he bought the property for the sake of Marks’s family, but said nothing about the delivery, and he did not say he was in debt to Marks. Jlquila Carroll also answered to the defendant’s interrogatories, that he had known Marks for fifteen or twenty years, but he could not say that at the time of the conversation alluded to, the boy and property were in the possession of Marks, or used by him then or afterwards; that Marks did not remain in Baltimore many months after the sale; that he did not know the year or month of the sale, and that Marks’s daughter was then about fifteen or twenty years of age, and was living with her father; and that he had no knowledge of a great intimacy existing between Sanderson and Marks.

This testimony being before the jury, we cannot think the court were right in giving the instruction they did. Upon the facts of the purchase from the sheriff, and the gift to the daughter,depends the question, whether the plaintiffs have a right to recover the negro boy in dispute; and the proof offered of them is not of a character, it would appear, to be decided on by the court. The declarations of Sanderson, in reference to these points, become evidence in the cause, by the defendant’s introducing and using them against his executors, and they ought to have been suffered to be considered, estimated and decided on by the jury; especially as the court had before submitted to their reflections, the question respecting the-possession of the boy at the time of the gift.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  