
    STAMPS vs. BEATY.
    
      A ü⅛ of i °f l£e tef-ecutor Vefts'aá abfolute title in
    dono£ tate dld not juf-“⅛ dw &le,the totheextcutbrí He cannot pur-'«jheflavein-°f
    in detinue, if the jWg«e« antum damage» win he given on toVeteT^eibw* for the deten-tio1? ¡ but rtot Jhepro^r'ite' uined/
    May 6th.
    ABOÜT the year 1770, Joseph Morin died in Virginia; leaving a will, by which, amongst other thirigs, he gave several specific and pecuniary legacies, and the “réstand residue of his personal estate to his wife, Mary Morin.” '
    In the yeár 177-, the executors, by a bilí óf Sale, reciting that the widow had paid debts for the testator, to the áriiount of 75/. — sold and Conveyed to her, in cón-sideratiori thereof, á négro womari and child. The possession of the negro ivorrian and her descendants had rethained with the widow; ahd those claiming Uhdef her; Until shortly before the commencement of this suit. Beaty was á purchaser under thé widow ; and Stamps having by sortie nieariS procured possession of shine of the negroes, claiming on behalf df the heirs ; Beaty, on the 1st day of August 18Ó4, corilmenced his fiction of detinue fori them; He recovered a judgment in the Bourbon circuit court; A bill of exceptions; filed by Stamps; stated the will; the bill of sale; á copy of the inventory of the estaté bf sfiid Joseph Morin (which amounted to more thfin said sum of 75/.) ; find also stfi-ted there was nb proof whether the sale froth the exécü-tors to the widow, was public of private; It also stated the length of possession of the widow, and those claiming under her. It also stated that the defendant had applied to the court, to mstrrict the jury that this evi-dencfe did not show a right in the widow; and those claiming ühdéri her; to the negroes : and that the court overruled the motion. Stamps appealed frorri this j udgment;
    
      Bledsoe-, fori the appellant;
    — By the laws of Virgihiá; when this transaction took place, riegroes were real estate ; and fexecutors werie authorised to Sell negroes, td pay debts, only; where there Was a deficiency of aSsets; and then the sale is directed to be rtiade in public, by auction — See body of Virginia Haws Í65; § 27. This is a special authority given to them in' a particular e vent¿ They; and all claittiing under them, must; therefore, shew that there was a deficiency of assets ; and that the sále Was public. Without this having been the case, the executor did not pursue his authority : and no doctrine is better established, than, that where a person is aeting under a special, limited authority, if he exceeds that authority, his acts are void, and do not bind his principal.
    Here, it is not shewn that there was a deficiency of assets, nor that the sale was public. The residuary bequest to the widow, of the personal estate, could not exonerate the personal estate from the payment of debts. It is the natural fund, and must be exhausted before you call in other aid, unless it is expressly exonerated by will. That has not been done here. The claim of the appellee to the negroes, is, therefore, clearly defective.
    
      Claij, for the appellee.
    — We have, in this case, shewn that we held nearly thirty years peaceable possession. That would protect us against all the world. The wrongful act of the appellant, the defendant below, by depriving us of the possession, cannot better his right. For if we could protect ourselves against any suit by them, it gives us a right, and we have an equal claim to the benefit of the statute of limitations, as if we were defendants.
    It is contended that slaves are real estate ; and that therefore the executors have no right to sell. It is true, the law declares them real, subject to certain exceptions ; and then makes the exceptions so broad that it leaves them real estate, but to one purpose ; that of descents — 1 Wash. 60, 2 Wash. 7.
    But let the conduct of the executor, as between him and the heirs, be proper or improper, his sale confers a right on the purchaser. If an executor sells a specific legacy, when there is a sufficiency of other assets to pay debts, he violates his duty; yet his sale vests a right in the purchaser — 2 Wash. 69 — 1 Atk. 235 — 2 Vez. 75.
    If an executor has a right to sell, in any event, his sale must be obligatory ; and the heirs must look to him, if he misconduct himself. They are secured in this, by his bond and security. How would it be possible for purchasers to run into a scrutiny of all an executor’s accounts, and know whether he has assets or not ? If you establish this doctrine, you sacrifice the estates of the deceased: for men, when they know they have to run such risks in purchasing, will seldom purchase of executors at all; or, if they do, they will purchase at a very low price.
    It was the duty of the executor to sell publicly; and after thirty years, in which this safe has not been questioned, ypu must presume the saje was public.
    I contend, further, that prior to the law of Virginia, cited by Mr. Bledsoe, an executor had, by the principles of the common law, a right to sell slaves, as part of the perishable estate of his testátpr ; and that the act is only a limitation of that power, as between him and the heirs ; but that as between him and the purchasers, the right remained as theretofore.
    
      Talbot, in reply.
    — When the act of the Virginia assembly, in question, was passed, negroes were real estate ; and as such, an executor had no more power over them, than he had over lands. It is by virtue of .that act, he derives his authority ; and if he does, not bring himself within it, he has none. But he has m> power hy that act, except in case of a deficiency of assets. If there is no deficiency, his power neverexisted ; ánd his .act is as unauthorised and void, as if he were to sell a tract of land.
    Every person claiming under a statute, must bring himself within the provisions of that statute ; so any one claiming under a special authority, must shew that the case comes within the power. It follows, therefore, that every person claiming under a sale made by an executor, of slaves, must shew that the executor comes within the statute ; and that he has pursued its directions. He must shew that the personal estate is exhausted. The maxim caveat emptor, here applies with peculiar propriety.
    This is not like the cases in the English books, of an executor selling a specific legacy. His sale is binding ; because the law passes the property to him, on the death of his testator ; vests it in him ; and requires his assent, before it can vest in the legatee.' Not so, with respect to slaves. They descend to the heir, and are to be divested out of the heir, in case of a contingency — the deficiency of personal assets ; and vest in the executor. This is an additional reason for requiring the executor, and those claiming under him, to shew that the contingency has happened, in order to vest the power in the executor.
    
      
      May 7th.
    
    Mr. Clay’s doctrine of calling in the statute of limitation, will not do. These statutary bars, are only to be used on the defensive. They never can confer a right, so as to be used by the plaintiff or complainant. Such was the decision of this court, in the case Tucker vs. Tucker’s heirs 
      , as to the statute of frauds.
    Edwards, Ch. J. delivered the opinion of the court. . — The important point involved in this appeal, is, whether a sale by an executor or administrator, of a negro belonging to the estate of a testator or intestate, is valid to the purchaser, without showing that the sale was to* raise money for the payment of debts, and a deficiency of other assets, made liable in the first instance ? The law which prescribes the duty, of an executor or administrator, reposes an especial trust and confidence in him ; and requires, for the security of the interest of the representatives of thé deceased, a bond for the fulfilment and due execution of that trust: upon which bond, ample compensation may be recovered for any breach of duty. But such a question as the present, can only arise between the heir or representative, and the execu-, tor or administrator.
    Bower being given to the executor or administrator, to sell, for the payment of debts, and in defect of other assets, it is not the duty of the purchaser, to inquire into the whole administration, to see whether there is a defect of other assets. He has a right to presume that the executor had a rightful authority to sell. And, indeed, it would be highly inconvenient, if, in every such sale, the heir could,' in every instance, pursue the property in the hands of the purchaser ; and in each individual case of sale, impose an examination of a lengthy course of administration ; thereby settling nice, intricate, and important questions, relative to the administrator or executor, in a suit in which he was no party ; and of consequence, in a manner, which, although it might bind the purchaser in the question between him and the heir, yet would not be conclusive against the administrator or executor.
    If the purchaser is bound to notice the amount of assets, as has been contended, why is he not also bound to notice the debts due by the decedent ? For it is not only necessary to justify the sale by the executor or ¿d-miuistrator, that there should bé no other assets liable for debts ; but that there should actually be debts or demands upon the estate. And if a sale to the purchaser, would be void in the one case, why not in the other ?
    
      May 10th.
    
    It has been taken for granted, that the purchaser has the means of ascertaining the deficiency of the fund made liable, for the payment of the debts ; which, by the bye,, is not very certain. But surely it cannot be contended, that he can, with certainty, ascertain the amount of demands upon that fund. And to impose such trouble, inconvenience, and risk, on a purchaser, would operate to the total annihilation of the power of the executor to sell, ip any event; or operate to the prostration pf the rights of the heir, in any sale that might take place : for purchasers would be few in number, and the price given, would be proportioned to. the risk ; the extent of which, would, in most cases, he uncertain. Such principles cannot be recognised by this court. They are therefore of opinion, that the sale to the purchaser is valid ; and if any injury has been done in this case, to the plaintiff ⅛ error, he must resort to his remedy against the executors.
    Judgment affirmed.
    On a subsequent day of the term, Clay moved for JO per centum damages, on the amount the slaves were valued to, as well as on the damages given for their de. tention. He insisted that was the amount of the judgment below, which was affirmed; and therefore they Were entitled to the 10 per cent, given by the statute, on that sum.
    
      Talbot, contra.-
    
    — The judgment in detinue is for the specific thing, and the value only in the event of its not being given up, If, instead of an action of detinue^ they fiad brought a bill in chancery', no value would have been assessed, ¿nd po question would have been made. Can their choosing to pursue another remedy alter the law ?
    
      
      
         Fall term 1803.
    
   Ep,warps, Ch. J.

delivered the resolution. of the court. — 7⅛ per centum damages must be awarded on the damages given below for the detention,' It cannot fie given on the, value of the slaves detained.1 
      
      
         Meredith vs. Sanders, Spring term 1810, S. P.
     