delivered the opinion of the court.

As a preliminary question we must first determine whether the exceptions were so taken, as to entitle the merits of the case to consideration. The verdict was rendered on the 3rd of February, and no exceptions were taken on the trial: on the 7th, a motion was made for a new trial, and the exceptions were taken to the overruling the motion, which it is said was in accordance with the act of 1830, Laws of Miss. 314. By an examination of this statute it will be seen, that power is expressly given to except to the decision of a circuit judge, in granting or refusing of a new trial. On taking the exception, the party is required to embody the substance of the evidence, and the reasons for a new trial in the bill of exceptions; and may assign as error in the appellate court, the granting or refusing the new trial. In this manner the merits of the motion are placed fairly before the appellate court, which for the purposes of the motion is made to occupy precisely the place of the circuit' court. From this act it necessarily follows that whatever may be urged as a reason for a new trial before the circuit court, may also be presented to the appellate court by the bill of exceptions.

A new rule is introduced, but it applies merely to motions for new trials; and does not abrogate the former law in relation to exceptions taken during the trial. On the contrary, both rules are now in operation. The consequence is that there are two kinds of bills of exceptions recognised by law; the first for matters arising during the progress of the trial, and the second, for matters arising on motion for a new trial. It was on the first mentioned *127class that the adjudications of this court have been had, in which the rule as laid down in the case of Walton v. the United States, was, as we think correctly adopted. But in regard to the second class this rule can have no further application than to require the party to take his exception when his motion is overruled. If this distinction be the correct one, it follows that whatever a party may urge for a new trial, he may also by exception place before the appellate court, for there he has a right to have the whole merits of his motion re-investigated. When we have settled therefore, the questions which may, or may not be raised on a motion for a new trial, it will only remain to determine whether any such question was raised in the present motion.

A party will not be heard to move for a new trial for the admission of improper evidence, when such evidence was permitted-to go to the jury without objection. Under such circumstances, the objection is considered as waived, unless it be made and noted when the evidence is offered. But the misdirection of the judge, is always open for consideration on a motion for a new trial. It is also proper to assign as a reason in support of such motion, that the verdict was contrary to law and evidence. This does not bring up the admissibility of the evidence, but involves merely the propriety of the verdict on the whole view of the case, the facts being supposed to be fresh in the memory of the court. As an appellate court, we should not be able to correct an error in the decision of the circuit court, unless the evidence be made a part of the record; hence the statute requires that the bill of exceptions shall contain the substance of the evidence. When it is so placed before us, we are to judge of the propriety of the verdict from the evidence, precisely as the circuit court does from its knowledge of the evidence, and if on the whole view of the case we think that the circuit court erred in refusing the motion, that error must be corrected by granting it. For this purpose, therefore, it will be sufficient if the exception be taken, and the evidence reduced to writing, on the determination of the motion, for this is the obvious meaning of the statute. How does this case stand under an application of these views?

The verdict was rendered on the third, and the motion for a *128new trial was argued and decided on the 7th, four days afterwards, on which last day the bill of exceptions was taken to the decision óf the court in overruling the motion; and it contains the substance of the evidence and also the reasons for a new trial. This is all that the statute requires; and every thing that was legitimately before the circuit Court oii the motion, is. also before us, and if there has been error wé inust correct it.

Such of the facts as require notice áre briefly these. Phillips sold the negroes in question by full warranty, to Sanderson, who sold to Larie the plaintiff below. At the time of sale there was a judgment against Phillips which bound the negroes; both Sander-son and Lane, were therefore- purchasers with full notice of the incumbrance* An execution afterwards emanated on the judgment and came to the hands of the sheriff. When the sheriff was about to levy the execution, Phillips gave him the names of these negroes, and directed him to levy on them, which.levy was made and the negroes sold* Phillips was not at the sale, nor did he take the negroes, or otherwise interfere. Did these facts entitle the plaintiff to an action of trover? The question se'ems to us to admit of no other than an answer in the negative.

The gist of the action of trover is conversion, and the conversion must be illegal, otherwise the action cannot be maintained. If on the trial therefore it appears that the property was rightfully taken, or rightfully withheld, the action is at an end. In this case we cannot question but what it was rightfully taken by the sheriff. It was subject to the execution which he levied on it, and a right was thereby given to take it. The agency which Phillips had in bringing about the levy, cannot alter the right, and it would be strange if he could be held liable for a constructive conversion, when the sheriff who took the property and held the actual possession, was not liable. Lane held the property subject to an incumbrance which could be legally enforced at any time, and had purchased under a knowledge of its existence. How can he complain of a consequence which he ought to have expected. In trover, the plaintiff must prove right of property and right of possession in himself, and conversion either actual or constructive by the defendant. In this instance he had no right of pos*129session, as against this execution, or at least his right of possession was Hable to be interrupted at any time. But it does not appear that the sheriff made the levy in consequence of what PhilHps said to him. It may be that his remarks or direction had no influence on the conduct of the sheriff. For these reasons we think there can be no doubt but what the verdict was against law ancf evidence. It is therefore unnecessary to say any thing as to the charges which the court gave to the jury.

The judgment must.be reversed and a new trial granted,