
    
      Nathan Sims ads. George Brock.
    
    1. B. brought an action of trover for a slave, which he claimed under the will of G. B. against S. A conversion was proved. The defendant purchased the slave at sheriff’s sale, as the property of J. VV. B., some eight or ten years before the trial, and had held him adversely.
    2. The plaintiff failed to show title in G. B., the testator, and offered no evidence of the assent of the executor. Held, that if four years had elapsed before the plaintiff acquired title by assent, the executor would have been barred by the statute of limitations, and could have conveyed no title by his assent. Moore vs. Barry, 1 Baily, 509. If the motion for a non-suit had been made on the circuit, it would have been granted, but as it was not made, the defendant can only have the benefit of the defect of title, by a new trial.
    
      Before O’Neall, J., Union, Extra Term, 1842.
    This was an action of trover for a negro man named Sam. When this case was called for trial, Mr. Dawkins, the defend ant’s attorney, stated that he had been informed his client was sick at home; that, at a previous term, he had understood from him he had an important witness in Georgia to be examined, and that until examined, he was not ready for trial. No steps had, however, been taken to examine the witness. Mr. Dawkins said he had written to Mr. Sims, advising him as to the situation of his case, and hoped he would be in attendance in the course of the day. The case could not be delayed longer, without, in a great degree, stopping the whole business of the court; no good cause for continuance seemed to the presiding Judge to be shewn; the case was therefore ordered on.
    The plaintiff claimed under the 5th clause of the will of George Brock, deceased, which is as follows: “ I further now give and bequeath to my brother J. W. Brock’s child, named George, the remainder of my property, consisting of one tract of land, on which the said J. W. Brock now lives, one negro man named Sam, and all the stock and property that is on the place and in his possession, all which I give and bequeath to the said George, the said J. W. B’s. son.” *
    Of this will H. D. Vanlew was executor. Some eight or ten years before the trial, the man Sam, named in the will, was sold by the sheriff of Union, and purchased by the defendant, as the property of J. W. Brock. A conyersion was proved. The negro was an old man when sold, and was dead at the trial; he was a coarse shoe-maker.
    Messrs. Evans, Jeter, and Coleman, said he was worth $300 or $400, and his hire $30 or $40. Mr. Saunders, who knew the negro well, said the price paid by Sims at the sheriff’s sale, $31, was his full value, and that his hire was worth nothing.
    The case was submitted to the jury, and they found for the plaintiff, $625.', The defendant afterwards submitted the affidavit hereto annexed, which was answered by Henry Rogers, the plaintiff’s next friend, in the affidavit hereto also annexed, and moved for a new trial. His Honor thought he had no power to grant the motion, and therefore refused it.
    The defendant appealed, on the annexed grounds.
    For a non-suit:
    1. Because the plaintiff made out no title to the property in himself, as the will did not convey the property to him in a legal manner, and the same was never vested.
    2. Because there was no evidence that the executor ever assented to the legacy.
    For a new trial, on the above grounds, and further,
    3. Because the case was ruled on to trial in the absence of the defendant, who had made no preparation for trial, in consequence of an agreement between himself and the next friend of the plaintiff, that the case was to stand over until the regular court in March, 1843, whereby he was deprived of the benefit of all his testimony.
    4. Because the defendant was surprised and entrapped by the acts and agreement of the next friend of the plaintiff, and thereby prevented from making the defence which he otherwise would have done.
    5. Because his Honor, the presiding Judge, refused the motion to set aside the verdict, on the shewing made by the defendant’s affidavit, as to the agreement and surprise.
    
      Affidavits.
    
    The defendant states, on oath, that at the last regular court, it was expressly agreed between himself and Henry Rogers, the next friend of the plaintiff, that this case was to be continued over until the regular court in March next, and in consequence of that agreement, he made no preparations for trial; that he considers he has a good defence, and that the verdict which has been obtained against him, if permitted to stand, would be a great fraud upon him, and deprive him of the means of making his defence. He further states, he had no idea the case was on the docket for the present term, or that any attempt would be made to press the trial, or he would have attended to it. That he expects to be able to show that the negro was the property of J. W. Brock, and not of the testator.
    NATHAN SIMS.
    Sworn to before me, Nov. 23, 1842.
    Wm. Ray, Magistrate ex-officio.
    
    Henry Rogers, in answer to the affidavit of the defendant served upon him, states, on oath, that he is the guardian ad litem of the said George Brock; that he was ready for trial at the last regular court; that the only conversation he had with the defendant, relative to the case, was this: The defendant said to him, his case would not come on; deponent replied, why, .Captain 1 Defendant said his witness, Samuel Gordon, was sick, and would not be here; to which deponent replied, he would go and see his attorney, and if the case was to be continued, he had better dismiss his witnesses; that defendant never spoke to him again on the subject; he states positively, he never did agree with defendant, either to continue the case at the last term, or that he agreed to continue it to the next regular term. That for the last term, the witnesses have proved their attendance in the case to the last day of the term.
    HENRY ROGERS.
    Sworn to before me, the 24th Nov., 1842.
    Wm, Ray, Clerk.
    
    Dawkins, for the motion.
    There was no evidence of the executor’s assent. Moore vs. Barry, 1 Daily, 504; 1 Hill, 69; 1 M’Mullan, 342. On the ground that the case was ruled on to trial in the absence of the defendant, Mr. Dawkins cited Graham on New Trials, 168.
    Herndon, contra.
   Curia, per

Evans, J.

The only evidence offered in this case was the will of George Brock, giving the negro to the plaintiff. To entitle the plaintiff to recover, it was necessary to prove that George Brock the elder was the owner of the negro, that he had bequeathed him to the plaintiff, and that the executor of Brock had assented to the legacy. In ordinary cases, an executor’s assent may be inferred from slight circumstances ; but when the time of the assent is important, some evidence on that point should have been given. The defendant had been in possession eight or ten years, holding adversely; and if four years had elapsed before the plaintiff acquired title by assent, the executor would have been barred by the statute of limitations, and could have conveyed no title by his assent. This was decided in Moore vs. Barry, 1 Bailey, 504. We are of opinion the plaintiff failed in his action, in two particulars; he shewed no title in George Brock, senior, and offered no evidence of the assent of the executor; and if the motion for a non-suit had been made on the circuit, it would have been granted ; but as it was not made, the defendant can only have the benefit of the defect of title, by a new trial, which is accordingly ordered.

Richardson, O’Neall, Earle, Butler and Wardlaw, JJ. concurred.  