The view which we take of this case renders it unnecessary to inquire what, in point of law, was ‘the effect of the bill of sale made by Mrs. Hester, to the plaintiff, or rather, whether it transferred not only the right of property, but a right to the immediate possession. From the evidence recited in the bill of exceptions, it is apparent, (in fact not disputed) that-the slave Mahala, was hired out at the time the contract was made; that Mrs. Hester, more than eighteen months thereafter, wrote a letter to the plaintiff, urging him to come and pay the purchasé-1 money and take her away; that the plaintiff, by his acts, as well as what he said, admitted the right of his vendor to retain the. possession until four hundred and fifty dollars, due on the purchase, was paid or tendered. Now, even conceding that the bill of sale gave a legal right to demand- the slave by suit, without the performance of any previous aot on the part of the plaintiff, yet the permitting of Mrs. H. to retain her, and the admission of her right to do so, until the purchase money was paid, afford irresistible evidence, that Mrs. H. held her under a contract, creating a pledge or lien. Nor can it be objected to this proof, that it shows a parol stipulation, made contemporaneously with the bill of sale; •for, even if it was then made, it was afterwards repeatedly acknowledged, and each acknowledgment may be regarded as giving validity to a contract, which in its inception, was binding, in morals, at least. [See Long on Sales, 188.]
The admission in the bill of sale, that the purchase money had been paid, is not conclusive against the vendor, and could not be set up in bar of an action brought for its recovery, much less can it be allowed to defeat -a promise subsequently made for its payment, so as to invalidate a lien given to the seller. [See 2 Phil. Ev. C. & H’s notes, 217, and 3 Id. 1441, and cases there cited.]
Proof of a demand of the slaves previous to the commencement of the suit, was not -necessary to entitle the plaintiff to his action. The service of the writ is a sufficient demand in detinue, and it is only necessary on the general-issue, to. prove an anterior demand, to entitle the plaintiff to damages from a previous day. [Shepard’s adm’rs, v. Edwards, 2 Haywood’s Rep. 186; Tunstall v. Mc-Clelland, 1 Bibb’s Rep. 186.].
The instruction then, prayed by the plaintiff’s counsel, on this point, should have been given to the jury.
One of the witnesses examined at the trial, stated facts from *308which a jury might have inferred a tender and refusal, viz: when the bag,- or bags, said to contain the specie to pay Mrs. H. the amount due for the slaves,was thrown down, and she was requested ■ to count the money, she refused to receive it. Now, the testimony of this witness, should have been disregarded by the jury, opposed as it was by the other witnesses, if they were equally respectable; and the evidence in respect to a subsequent offer to deliver up the slaves upon the payment of four hundred and fifty dollars, '5>if credited, would have entirely done away the effect of a previous tender. Yet it was a question of fact for the solution of the jury, whether the tender was dispensed with, or made, or whether any, and which of the witnesses was entitled to the highest degree of credit, and the jury might have concluded that the tender was sufficient. It cannot be assumed, that the plaintiff has not been prejudiced by the charge, that a demand should have preceded the action, and was indispensable to its maintenance, for though the jury may have been satisfied that he made a tender, or was excused by the defendant’s refusal made in advance, from making it, yet they would have been obliged, from the absence of proof of a demand, to find for the defendant. It is then clear, that the circuit judge committed a fatal error, in instructing the jury, that evidence of a fact, not at all material, should have been adduced to entitle the plaintiff to their verdict.
We regret the necessity of reversing the judgment in this case, as justice has probably been done between the parties. But we have no discretion in the matter.
The judgment is reversed, and the cause remanded.