Opinion
(January Term, 1817.)
The action of replevin cannot be supported unless a taking is proved.
REPLEVIN for a slave which was the property of Tryon Smith, in December, 1814, when the sheriff of Bladen made a levy on her by virtue of an execution against said Smith, and at a public sale set her up to the highest bidder at the courthouse 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 request, 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 against exposed the slave to the 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 demand of the plaintiff, this suit was instituted. The charge of the court being in favor of the plaintiff, a verdict was found accordingly. Motion for a new trial on behalf of defendant, upon the ground that the charge of the court was against law, etc. Motion overruled; from which judgment an appeal is taken to the Superior Court.
Henry for appellant.
McMillan for appellee.
Questions for the consideration of the Supreme Court:
1. Is the action of replevin sustainable in this State?
2. 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?
3. Did not the time given for the payment of the money confirm the sale to the defendant, and vest the property in him?
4. Did the right of the slave legally vest in the plaintiff, (536) under all the circumstances as above stated?
When one individual attempts to become "his own carver," and takes from the possessions of another personal 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 show the right he had for the exercise of this summary justice. This restoration is effected by the action of replevin, 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 the 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 a case to suppose that the defendant acquired it by a trespass. We are, therefore, of opinion (537) that the rule for a new trial should be made absolute.
NOTE. — See S. c., after a new trial, reported in 6 N.C. 357. See, also, Wrenford v. Gordon, 1 N.C. 54, and the act of 1828 (1 Rev. Stat., ch. 101), which provide for bringing the action of replevin for slaves in certain cases.
Cited: McLeod v. Oates, 30 N.C. 391.