
    *Executors of J. Evans v. John Rogers.
    A new trial will not he granted on the ground of new evidence being discovered after the trial.
    Where a person purchases property at sheriff’s sale, at which the owner was present, it will not be presumed that he purchased as the agent of the owner, without strong testimony.
    A sheriff’s sale of personal property need not be evidenced by a return on the fi. fa., or a bill of sale from the sheriff, but may be established by parol testimony.
    This was an action of trover, brought by the executors of John Evans against the defendant, Rogers, for a nego woman named Rose.
    It appeared in evidence, by the the testimony of Mr. Blister, that this woman, in virtue of a fi.fa. in the lifetime of the testator, had been levied .on and sold as his property. That the defendant, Rogers, had bid her off at $301. That possession of the woman was delivered to Rogers, but no bill of sale was given by the witness, as sheriff. He was told by the purchaser to make an entry, and the following entry was made in his book, by the direction of the defendant: “John Rogers has paid this debt, and takes the execution, levied as it is on the negro.” There was no return on th % fi.fa. of the sale made by the sheriff, and the only evidence in relation to it, was the memorandum in the sheriff’s book, and by parol. The execution under which the sale was made was produced, and the sheriff, Brister, further testified, that the woman was sold under the execution, at public outcry, Evans, the testator, and Rogers, being both present. A ground taken in the trial of this case by the plaintiffs, was, that Rogers had purchased this woman as the agent of their testator. It appeared in evidence, that after the sale, the woman returned to the plantation of the testator, and remained there for some time before she was taken by the defendant. A Mr. Covington proved a conversation between the testator and defendant. The latter spoke of taking the woman home, and the testator replied that *5641 he must use *his pleasure. The testator informed this witness previous 1 to Rogers’ taking the woman home, that he, the testator, had her on hire at $5 per month. That after the defendant had taken the woman home, the witness met with the testator, who informed him of the circumstance, and said that Rogers had treated him ill. During the time that the testator had possession of the woman, after the sale, in a conversation with the testator, the witness said he asked him if Rose belonged to Rogers, he replied yes, that he had hired her at $5 per month, and that when he paid Rogers, Rose was to become his again.
    
      Aaron Pearson deposed, that he -was present when a demand was made by the plaintiffs for the nego, that defendant refused to deliver her. The defendant told Evans, the executor, who made the demand, that if he would pay him his money, he would give up the negro, upon which, Evans pulled out his pocket book, and said to defendant, that he was ready to pay him if he would come to a settlement. Rogers refused to receive paper money, which the book contained, saying he would take nothing but hard money.
    Mr. Bethea deposed, that he was present at the sale, and thought that the defendant was buying for the testator, who was at the time his overseer, but did not hear the defendant say that he purchased her for testator.
    Joshua David proved, that he always understood from defendant, that he did not mean to take advantage of the sale, provided there were some conditions complied with, of which the witness knew nothing.
    Mr. Furness deposed, that Rose was worth seven or eight hundred dollars. That the testator and five of his hands had worked in the crop of Rogers, and that one or more of the cotton crops made, had gone into the hands of the defendant.
    The defendant offered no testimony.
    The case was tried before Mr. Justice Gantt, Fall Term, 1819, for Marlborough district, and a verdict was found for the defendant.
    *The grounds of appeal were: 1. For misdirection of the presiding r.x-505 judge, in charging the jury, that a sheriff’s sale of a negro, need not be evidenced by the sheriff’s return on the execution, or a bill of sale, but might be proved by parol.
    2. That there was sufficient evidence that the defendant purchased the negro as the agent of the plaintiff’s testator.
    3. That since the trial, abundant evidence has been discovered, of the declarations of the defendant, made at the sale, that he was bidding for the plaintiff’s testator.
   The opinion of the Court was delivered by

Gantt, J.

The last ground taken by the counsel for the plaintiffs, has not been insisted on in the argument, as being maintainable. It has often been decided, that the discovery of new evidence after trial was not a good ground for a new trial. This ground, therefore, needs no further notice than a reference to State v. Harding, 2 Bay’s Rep. 268, to show that it cannot avail.

From an attentive examination of the evidence, it appears not to warrant the conclusion drawn from it by the plaintiffs, and which forms the second ground taken in the brief for a new trial: that the defendant purchased the negro, Rose, as the agent of the plaintiffs’ testator. Belief prevailed on the day of sale, that such was the fact, but it was unauthorized from any declaration on the part of the defendant. Besides, it conflicts with what actually took plate, a levy duly made, a sale at public outcry, when the testator and defendant were both present, and when the defendant became the purchaser of the woman sold. It conflicts with the positive declarations of the testator, after the sale, that the right of property in Rose was in the defendant, from whom he had hired her at §5 per month.

The circumstances proved, of the testator being in the capacity of an overseer with defendant, of his ^working five hands on his plan- r^sg/. tation, and the defendant having received the proceeds of one or L more of the cotton crops, are too vague and inconclusive to prove that defendant acted as his agent in the purchase of this woman. Besides, it was proved by Brister, the sheriff, that the defendant had been in the habit of advancing moneys on account of the testator; and the testimony of Covington went to establish the fact, that after the sale, and when the testator acknowledged that he had the woman on hire from the defendant, he admitted at the same time, that he was indebted to the defendant, by stating, that whenever he paid up Rogers, Rose was to become his again. The verdict of the jury upon the evidence, is conclusive of the fact, that the defendant did not purchase as agent.

The ground most strongly relied on by the counsel for the plaintiffs, is the first taken in the brief, that of misdirection of the judge, in stating to the jury that a sheriff’s sale of a negro under a ft. fa. need not be evidenced by a return on the execution, or a bill of sale, but might be proven by parol testimony. As respects personal property the law is very clear, that it passes by delivery ; and unless some particular reason could be shown why a discrimination should be made in the case of a sheriff’s sale, it would seem to follow, that a sale legally made by a sheriff, accompanied by delivery of possession, would fall within the same reason which governs in other cases, and would be as effectual to transfer a chattel interest, as a sale made, by any other individual. By the levy made, the sheriff had acquired a special property in the woman, and was as much entitled to sell as the owner himself, before any had been created. If the purchaser was satisfied with a title thus acquired, and was willing to depend upon the notoriety of the transaction, and the regularity of the sale for his security, it was certainly competent for him to do so. A bill of sale from the sheriff might perhaps have better perpetuated the *5611 evidence of a right which he had acquired by his purchase, but it -I is the sale itself, and payment of the money by the purchaser, which passes the right of property in the chattel sold. As respects a bill of sale for personal property sold by a sheriff; whatever doubt might have been entertained formerly, when sheriffs were in the habit of insisting upon purchasers accepting such evidences of their title, and demanding payment for such bills of sale, no doubt can possibly remain at present, since the passage of an Act in 1808, 2 Brev. Dig. 221, wherein it is enacted, “ that any person or persons who may hereafter become purchasers of personal property at any sheriff’s sale within this State, shall not be compelled to take a bill or bills of sale, for the property so purchased by him or them, nor to pay for any bill of sale without the purchaser should think proper to demand the bill of sale for the property so purchased by him or them, any law to the contrary notwithstanding ; and in case the purchaser should demand a bill of sale, then the sheriff shall charge therefor not more than two dollars.” In this case the purchaser made no such demand of the sheriff; and this clause in the Act would seem in itself a.full answer to the first ground taken in the brief, so far as respects the title of the purchaser, whatever negligence might have been practiced afterwards by the sheriff as to a return upon the execution, if that indeed were legally necessary to effectuate the purchaser’s title. But a return to a fi. fa. is not necessary to effectuate the purchaser’s title ; it is the sale alone which gives the title. In 4 Com. Dig. 123, tit. Execution, it is said, that a sale by the sheriff continues good, though the judgment be afterwards reversed, for the money only shall be restored.

jEvans, for the motion. Witherspoon, contra.

By the English authorities it would seem that a sheriff need not return a ft. fa. (4 Com. Dig. 123,) but by several Acts of Assembly of this State, it is made the duty of the sheriff to make returns on executions. By an Act passed in 1)91, it is required that sheriffs shall be bound to make return of the executions lodged in his office, on oath, within ten days after the return *day, with a full and particular account of r*cRo the levies or sales by him made, and of the money in his hands. L 2 Brev. Dig. 216. By an Act passed in 1)99,“ Brev. Dig. 223, a penalty is imposed on sheriffs who shall refuse or neglect to make returns to executions ; but there is nothing to those Acts which has the slightest tendency to impair a title acquired at sheriff’s sale, on his default to make the required return. For his neglect, he is made to forfeit a sum not less than forty nor more than two hundred dollars, to any person who shall sue for the same, and is not to be exonerated from such other pains and penalties as by law they are subject to. In Johns. Cas. vol. 1, 155, the chief justice, in delivering the opinion of the Court in the case of Jackson ex dem. Kane & Kane v. Sternbergh, and where the subject matter was real estate, as respects the return of the sheriff to the execution under which the estate had been sold, observed, but the sheriff’s return in my opinion was not essential to the title of the purchaser; that title was not created by, nor dependant on, the return, but was derived from the previous sale made by the sheriff, by virtue of his writ.” In the the ease of Simonds v. Catlin, 2 Caines’ Rep. 63, Justice Kent observes, “ It is not requisite to the validity of the proceedings on execution, that the writ should ever be returned.”

But why should the plaintiffs in this action endeavor to make this neglect of the sheriff a ground of their recovery ? Have they any doubt of the fact, that this negro woman was levied on by the sheriff of the district, and sold under the ft. fa ? Is it doubted, that the defendant became the purchaser at the sale, and that he paid the sum of $301, at which she was knocked off to him, and that this money went to discharge of a debt due from the plaintiff’s testator ? It would have been in my opinion competent for the Court, on the trial of this case, to have ordered the sheriff to make such a return then on the execution as corresponded with the facts which had taken place, but his testimony, as given in, superceded, in the opinion of the *Court, the necessity of his doing so, and the r^Kga purchaser may now demand a bill of sale, should he think itneces- L sary. I can see no reason in this case for disturbing the verdict which has been given by the jury, and I am of opinion the motion should fail.

Colcook, Richakdson and HugeR, JJ., concurred. 
      
       Ante, 452.
     
      
       Ante, 299.
     
      
       5 Stat. 571, § 6.
     
      
       7 Stat. 264, 110.
     
      
       7 Stat. 296, § 21. 405. See Acts of 1827, 1839 and 1845, cited in note, IN. & M’C.
     