/ delivered the opinion of the Court:
What might have been the right of the Plaintiff to recover damages for the non-performance of such contract, as is stated in the case, had the Defendant kept possession of the negro, it is not necessary now to enquire. The refusal.of the Defendant to pay the money, and the act of the Plaintiff in taking home the negro, show the intention of the parties. By the terms of the sale, the Defendant was bound to pay down the money ,• his be-fcoming the highest bidder, amounted to an undertaking to pay the money on that day. The Plaintiff took the negro home, because the money was not paid, and tfio Defendant’s refusal to pay on a subsequent day, was no breach of his undertaking. But if there could be any doubt as to the legal effect of the Plaintiff’s conduct, in tailing the negro home on the day of sale, his conduct afterwards in directing the Sheriff to levy on the negro as the property of his testator, is sufficient to remove it. This sale was made after the Defendant had disclaimed all title, and shews that the contract had been rescinded between the parties. Judgment for the Defendant.