
    Colin Worten Administrator of John W. Ashley, vs. Titus Howard.
    A sale by an executor or administrator of property of his intestate, unless in the i mode prescribed by the statute passes nó title, and is void. p r
    
    The return of an administrator to the orphan’s court of sales of his intestate’s property made by him, not showing upon its face that the sales were made according to the statute, may be attacked, and it may be shown by parol evidence that the sales were not so made.
    A bill of exceptions taken, to the exclusion of one item of testimony, is sufficient, without embodying all the evidence, to reverse the judgment, if the testimony was improperly excluded.
    The statute of this state, enacting “ that any person having a legacy bequeathed in any last will and testament, may sue for, and recover the same at common law.” (How. & Hutch. 412,) changes the common -law which requires a resort to a court of equity, and authorizes a specific legatee, to maintain a suit for it at law without the assent of the executor.
    The'action of detinue in this state survives, by virtue of the statute, H. & H. 414, .which provides “ that all actions shall survive, except actions of slander, and for injuries or torts done to the person.”
    ■Whether an action of detinue on the death of the plaintiff, can be revived without the statute ? Qussre ?
    In error from the circuit court of Carroll county.
    John H. Ashley, by his next friend Hardy Worten, brought an action of detinue against Joseph Person, and Titus Howard, to recover a negro girl, Sophia.
    The defendants pleaded the general issue. A new trial was had, and the cause discontinued as to Person. The death of the infant was afterwards suggested, and the suit was revived in the name of Colin Worten, his administrator; and at a subsequent trial the jury found for the defendant.
    On this last trial, the will of Josiah Ashley, under which the plaintiff claimed, was read to the jury ; this will had been duly probated in 1836. The suit was instituted in April, 1841. Josiah Ashley was the father of John H. and by the will, the negro girl was left to him; the defendant then read to the jury, the return of the administrator upon the estate of Josiah Ashley, deceased, of sales of the property of that estate, embracing the negro in controversy. The court permitted the return to be read, and the plaintiif introduced two witnesses, and offered to prove that the sale by the administrator was a private one; but the court rejected'the evidence, and the plaintiff excepted; the return of the administrator did not show in what manner the sale had been effected.
    The error assigned is the rejection of this testimony.
    
      Sheppard, for plaintiff in error.
    The plaintiff derived his title to the property in controversy under the will of his father, and his title as legatee could only be divested in the manner and for the purposes prescribed by law.
    A private sale by the executor was clearly void, and could not affect the title of legatee; this point was settled in the case of J. & J. Cable v. Washburn Sp Bell, 1 How. Rep. 560. Ven-ir ess, et al. v. Smith, 10 Peters Rep. 166.
    The court erred in rejecting such evidence, and for this error the judgment should be reversed. ■*
    It is urged, by counsel for defendants, that the action could not be revived; but on this point we refer to'How. & Hutch. 19, 414, sec. 95, 584, sec. 29.
    
      W. Thompson, for defendant in error.
    John H. Ashley, by his next friend, Hardy Worton, instituted suit in the Carroll circuit court, (an action of detinue) to recover from Titus Howard a negro woman named Sophia. The defendant appeared and plead non detinet; during the pendency of the suit John H. Ashley died, and the cause was revived in the name of Colin Worten, his administrator.
    .On the trial of‘the issue, a verdict was rendered in favor of the defendant.
    T^ plaintiff filed a bill of exceptions to the opinion of the court in relation to the admission of evidence. It would seem that the plaintiff claimed the slave, under a bequest in the will of his father, and that the defendant defended under a sale made by the executor under an order of the probate court.
    The court admitted the list of sales, made by the executor, and returned to the probate court, including the slave in dispute, to be read in evidence by the defendant, to which the plaintiff excepted. The court refused to admit evidence offered by the plaintiff to s.how the sale made by the executor was a private and not a public one, to which the plaintiff also excepted.
    1. The record does not state that the plaintiff introduced any evidence showing that the slave ever, belonged to the testator.
    2. The plaintiff did not introduce any evidence showing that the executor assented to the legacy, and therefore showed no right in himself to sue.
    3. The action of detinue does not survive by the common law. Jones v. Littlefield, 3 Yerg. 133.
    It is left to the honorable court to say whether the statute has changed the common law on this subject.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of detinue originally brought by John H. Ashley, against the defendant in error, to recover a negro girl bequeathed to him by the will of his father, Josiah Ashley. The will was admitted to record in 1836, and this suit was instituted in 1841. It seems that the girl in controversy, had been sold by the executor, and the defendant produced and read his return to the probate court of Carroll county, in proof of that fact. The plaintiff then introduced two witnesses, and offered to prove by them, that the sale was made by the executor at private, and not at public sale, as prescribed by law; but the court excluded this testimony from the jury, to which a bill of exceptions was filed. The jury found a verdict for the defendant, and the cause comes by writ of error to this court.

The statute regulating sales by executors and administrators, directs that they shall be made to the highest bidder at public auction. H. & H. 411. And this court has heretofore decided, that unless the statute be pursued in this respect, the sale is void, and confers no title on the purchaser. 1 How. 561. The return of sales does not show upon its face, that the sale was made according to the*statute. It was therefore clearly open to the plaintiff to attack it, and to show by evidence that it was not so made. The evidence offered was legitimate, and it was an error in the court to reject it. If the return had stated that the sale was made publicly, we need not now decide, whether such return would have been conclusive, or only primé, facie in its character.

Several objections, however, are urged in this court, agaiust the recovery of the plaintiff, which we shall proceed to notice. First, it is said that the plaintiff did not introduce any evidence, showing that the slave ever belonged to the testator. Without inquiring whether such testimony were necessary, it is a sufficient reply, that the bill of exceptions does not profess to set out all the proof in the cause. It was taken upon a single point only, the improper exclusion of a particular item of testimony; and if well founded, it is sufficient to reverse the judgment.

The next objection is of a similar character, namely, that the plaintiff introduced no evidence to show the assent of the executor to the legacy. , A similar reply might be made. It may be well to add however, that we do not think the assent of the executor to a specific legacy, is necessary in this state, to enable the legatee to maintain a suit for it at law. The general rule in England was, that the legatee must resort to a court of equity for relief; but the rule was modified so far as to allow an action at law, after the executor had given his assent. 3 East, 120. Gorton v. Dyson, 1 Brod. & Bing. 219. But our statute has introduced a change in very broad and unlimited terms. It enacts “ that any person having a legacy bequeathed in any last will and testament, may sue, for, and recover the same at common law.” H. & H. 412. This places the remedy on higher ground than at common law, and if the property be necessary for the payment of debts, or a final settlement has not been made, the executor must rely on it in his defence, to defeat the recovery.

The last objection is, that the action of detinue does not survive at common law. It is worthy of remark that this objection was not made in the court below, and the trial was had without reference to it. We should be very reluctant now to sustain it, even if warranted by strict law, because there is strong reason to hold that the party waived it. The only authority referred to by counsel, in support of this objection, is Jones v. Littlefield, 3 Yerger, 133. The case decides only that the action cannot be revived against persons in their representative capacity, but a new action must be brought against them as individuals. The .reason assigned is,- that they cannot be guilty of a wrongful detention, in a representative character. The reason of this rule does not extend to suits in which the party plaintiif dies. But our statute expressly provides “ that all actions shall survive, except actions of slander, and for injuries or torts done to the person.-” H. & H. 414, sec. S3, 95. We can see no room for doubt as to its intention.

For the improper exclusion of the testimony, the judgmeht will be reversed and a new trial granted.  