delivered the opinion of the Court. The dispute between the parties in this case is about the right of property *256in 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 *257had 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.