Judge Simpson
delivered the opinion of the court.
This action was brought by the executor against the widow of the testator for several slaves, which, as alleged in the petition, she unlawfully detained from the plaintiff.
The testator’s will contained a specific devise of the slaves sued for, and therefore it is insisted that the title to them passed to the devisees, and not to the executor, and that the latter cannot maintain a suit for them.
The will was executed and the testator died in 1854; the legal effect of the provisions of the will, and the rights of the executor, must therefore be regulated and governed by the Revised Statutes. Since they took effect slaves are personal estate, and, upon the death of a testator, pass to his executor like any other personal estate, notwithstanding they are specifically devised. Suits may be maintained by the personal representative for their recovery, although he is expressly prohibited from selling them, unless, for the want of other assets, a sale of them be necessary to pay the debts of the decedent. (Revised Statutes, chapter 93, article 1, sections 3 and, 4, page 627.)
If then the slaves sued for belonged to the testator, the title to them, upon his death, passed to the [92]*92executor, and he has a right to maintain this action for their recovery.
2. An action may be maintained against one who has had the possession of slaves or personal property, though he may nothavetheposBeasion when the suit is brought. (3 Mon. 103; 1 Dana, 118.) And no demand ia necessary before suit brought, (3 IAlt. 50,) even though the defendant was bailee, and has permitted another to take the possession of the property. (3 Dana, 44.)
But it is contended that the action cannot be maintained against the defendent, because the slaves sued for were not in her possession at the time the suit was commenced, and also because her previous possession of them was not adverse to the plaintiff’s right, and the possession of them had not been demanded by the plaintiff.
The defendant, in her answer, denied that the slaves in controversy had ever belonged to the testator; alleged that they were no part of his estate; that his executor had no right to them; that they belonged to her father, and that she had held and recognized them as his property.
The testimony showed that they remained in her possession after the death of the testator, and considered in connection with her answer, it conduced strongly to prove that they had been transferred to her father’s possession, with her consent and approbation.
An action for slaves, or other personal property, may be maintained against a person who has held the possession, although he did not have it, at the commencement of the suit. (Bush’s rep. vs. White &c., 3 Mon. 103; Pool vs. Adkinson &c., 1 Dana, 118.) And no demand, previous to the commencement of the action, need be proved. (Jones vs. Henry Boggs, 3 Litt. 50).
Even where the defendant is bailee, and has improperly permitted a third party to take possession of the property before suit brought, the action can be maintained. (Rucker vs. Hamilton, 3 Dana, 44.)
If, then, the defendant was the bailee of the plaintiff, she is liable in the action, without any previous demand, if she permitted the possession of the slaves to be transferred to her father before the commencement of the suit; and if her possession was adverse to the right of the plaintiff, as it must have been, according to the statements in her answer, in which his [93]*93right was denied, and the slaves were alleged to belong to another person, she is also liable, notwithstanding she did not have the possession of them at the commencement of the action.
3. When a pl’tiff has made out, by proof, a prima facie right to recover, it is error for the court to give a peremptory instruction to find for the def’t.
4. As a general rule the court of appeals will not reverse, unless all the evidence given upon the trial is presented in the bill of exceptions. (2 Littell, 182; 2 Mar. 222; IDana, 14.) This rule does notapply to a case where the bill of exceptions shows that the pla’tff, by proof, made out prima facie a right to recover, and the court peremptorily instructed the jury to find for the def’t.
On the trial, after the plaintiff had introduced his testimony, the court instructed the jury to find for the defendant. The court was of the opinion, as it is said by counsel, that the title to the slaves in contest passed under the will to the specific devisees, and not to the executor, and on that ground gave the instruction referred to. But whether the instruction was based upon that view of the law or not, it must be deemed erroneous,because the plaintiff had made out by proof a prima fade right to recover, and a peremptory instruction by the court, under the circumstances, was unauthorized and improper.
The bill of exceptions, however, does not state that the evidence which it contains is all that was given on the trial, and it is therefore contended, that this court cannot decide that the court below erred in its instruction to the jury.
As a general rule a judgment cannot be reversed unless all the evidence given upon the trial is presented in the bill of exceptions, because the court cannot usually decide whether the instructions given by the court were relevant and proper, unless all the testimony is contained in the bill of exceptions. (2 Litt. 182; 2 Mar. 222; 1 Dana, 14.)
In this case, however, it appears by the evidence, which is contained in the bill of exceptions, that the plaintiff had made opt a,'state of case which would have authorized the jury to have rendered a verdict in his favor. If, therefore, no other evidence was introduced, the instruction of the court was evidently erroneous. If the plaintiff introduced other evidence in support of the action it would be equally erroneous. And if evidence was introduced to sustain the defense relied upon, and to prove that the slaves belonged to the defendant’s father, it would still be erroneous, because then a peremptory instruc[94]*94tion to find for the defendant could not properly have been given. The evident conclusion, therefore, is, that the instruction of the court was improper and erroneous; consequently, this case must be regarded as an exception to the general rule, and as not coming within its reason and spirit.
5. A remote contingent interest in the decision of a suit does not render a witness incompetent; the objection fgoes alone to his credibility.
6. A party objecting to the decision of the court must state the objection, with so much of the evidence as is necessary to explain the objection, and no more. (Code of Frac. sec. 365.) It is the duty of the objector to see that this is done.
The plaintiff was offered as a witness and rejected by the court as incompetent, to which decision of the court he excepted.
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Judge Simpson
delivered the opinion of the court.
This action was brought by the executor against the widow of the testator for several slaves, which, as alleged in the petition, she unlawfully detained from the plaintiff.
The testator’s will contained a specific devise of the slaves sued for, and therefore it is insisted that the title to them passed to the devisees, and not to the executor, and that the latter cannot maintain a suit for them.
The will was executed and the testator died in 1854; the legal effect of the provisions of the will, and the rights of the executor, must therefore be regulated and governed by the Revised Statutes. Since they took effect slaves are personal estate, and, upon the death of a testator, pass to his executor like any other personal estate, notwithstanding they are specifically devised. Suits may be maintained by the personal representative for their recovery, although he is expressly prohibited from selling them, unless, for the want of other assets, a sale of them be necessary to pay the debts of the decedent. (Revised Statutes, chapter 93, article 1, sections 3 and, 4, page 627.)
If then the slaves sued for belonged to the testator, the title to them, upon his death, passed to the [92]*92executor, and he has a right to maintain this action for their recovery.
2. An action may be maintained against one who has had the possession of slaves or personal property, though he may nothavetheposBeasion when the suit is brought. (3 Mon. 103; 1 Dana, 118.) And no demand ia necessary before suit brought, (3 IAlt. 50,) even though the defendant was bailee, and has permitted another to take the possession of the property. (3 Dana, 44.)
But it is contended that the action cannot be maintained against the defendent, because the slaves sued for were not in her possession at the time the suit was commenced, and also because her previous possession of them was not adverse to the plaintiff’s right, and the possession of them had not been demanded by the plaintiff.
The defendant, in her answer, denied that the slaves in controversy had ever belonged to the testator; alleged that they were no part of his estate; that his executor had no right to them; that they belonged to her father, and that she had held and recognized them as his property.
The testimony showed that they remained in her possession after the death of the testator, and considered in connection with her answer, it conduced strongly to prove that they had been transferred to her father’s possession, with her consent and approbation.
An action for slaves, or other personal property, may be maintained against a person who has held the possession, although he did not have it, at the commencement of the suit. (Bush’s rep. vs. White &c., 3 Mon. 103; Pool vs. Adkinson &c., 1 Dana, 118.) And no demand, previous to the commencement of the action, need be proved. (Jones vs. Henry Boggs, 3 Litt. 50).
Even where the defendant is bailee, and has improperly permitted a third party to take possession of the property before suit brought, the action can be maintained. (Rucker vs. Hamilton, 3 Dana, 44.)
If, then, the defendant was the bailee of the plaintiff, she is liable in the action, without any previous demand, if she permitted the possession of the slaves to be transferred to her father before the commencement of the suit; and if her possession was adverse to the right of the plaintiff, as it must have been, according to the statements in her answer, in which his [93]*93right was denied, and the slaves were alleged to belong to another person, she is also liable, notwithstanding she did not have the possession of them at the commencement of the action.
3. When a pl’tiff has made out, by proof, a prima facie right to recover, it is error for the court to give a peremptory instruction to find for the def’t.
4. As a general rule the court of appeals will not reverse, unless all the evidence given upon the trial is presented in the bill of exceptions. (2 Littell, 182; 2 Mar. 222; IDana, 14.) This rule does notapply to a case where the bill of exceptions shows that the pla’tff, by proof, made out prima facie a right to recover, and the court peremptorily instructed the jury to find for the def’t.
On the trial, after the plaintiff had introduced his testimony, the court instructed the jury to find for the defendant. The court was of the opinion, as it is said by counsel, that the title to the slaves in contest passed under the will to the specific devisees, and not to the executor, and on that ground gave the instruction referred to. But whether the instruction was based upon that view of the law or not, it must be deemed erroneous,because the plaintiff had made out by proof a prima fade right to recover, and a peremptory instruction by the court, under the circumstances, was unauthorized and improper.
The bill of exceptions, however, does not state that the evidence which it contains is all that was given on the trial, and it is therefore contended, that this court cannot decide that the court below erred in its instruction to the jury.
As a general rule a judgment cannot be reversed unless all the evidence given upon the trial is presented in the bill of exceptions, because the court cannot usually decide whether the instructions given by the court were relevant and proper, unless all the testimony is contained in the bill of exceptions. (2 Litt. 182; 2 Mar. 222; 1 Dana, 14.)
In this case, however, it appears by the evidence, which is contained in the bill of exceptions, that the plaintiff had made opt a,'state of case which would have authorized the jury to have rendered a verdict in his favor. If, therefore, no other evidence was introduced, the instruction of the court was evidently erroneous. If the plaintiff introduced other evidence in support of the action it would be equally erroneous. And if evidence was introduced to sustain the defense relied upon, and to prove that the slaves belonged to the defendant’s father, it would still be erroneous, because then a peremptory instruc[94]*94tion to find for the defendant could not properly have been given. The evident conclusion, therefore, is, that the instruction of the court was improper and erroneous; consequently, this case must be regarded as an exception to the general rule, and as not coming within its reason and spirit.
5. A remote contingent interest in the decision of a suit does not render a witness incompetent; the objection fgoes alone to his credibility.
6. A party objecting to the decision of the court must state the objection, with so much of the evidence as is necessary to explain the objection, and no more. (Code of Frac. sec. 365.) It is the duty of the objector to see that this is done.
The plaintiff was offered as a witness and rejected by the court as incompetent, to which decision of the court he excepted. He stated on the examination which was made to enable the court to determine the question of his competency, that he was the executor of the decedent, and had no interest in the suit; that his testator was the executor of the plaintiff’s father, and in that character was indebted to him, and some of his brothers and sisters—a small balance to each. That the balance due the plaintiff had been paid out of the assets in his hands, and he believed that he had in his hands assets enough, independent of the slaves sued for, to pay all said balances and all other preferred debts; but if it should turn out differently then he would be bound to refund ratably. This was the substance of his statement, as we understand it; and according to this statement he was clearly competent. His.interest was remote and contingent, and only went to his credibility.
It is however contended, as the bill of exceptions does not purport to contain all the evidence, his incompetency may have been shown by other testimony, and therefore this court cannot decide that he was improperly included as a witness. But the Code of Practice provides that the p.arty objecting to a decision of the court must state the objection, with so much of the evidence as is necessary to explain it, and no more. (Section 365.) This was done in this case, and if there were any other evidence introduced, that had a bearing upon the question, the other party should have seen that it was also stated on the record. But as a statement was made of the evidence upon which the decision was based the presumption is that it contains all the evidence that was [95]*95necessary to explain the objection, and enable the court to decide the question which was before it.
The plaintiff was therefore improperly excluded as a witness, according to our understanding of his statement, as contained in the exception. But it also contains a statement, that unless he recovered in this suit he would have to refund to the other heirs of his father. This statement seems to be in direct conflict with the other statements, and we have disregarded it, supposing it to have been introduced by inadvertance. If such howeverbe the fact, he would be incompetent as a witness. What his statement is can be ascertained upon another trial.
Wherefore, for the error in the instruction of the court, the judgment is reversed and cause remanded for a new trial, and further proceedings consistent with this opinion.