Tuck, J.,
delivered the opinion of this court.
This is an action of trover instituted by the appellant against the appellee to recover the value of certain negroes, as the-estate of Sarah Seward. At the trial the plaintiff proposed to ask a witness, “if he had ever heard the title of Sarah Seward disputed,” which question being objected to- by the defendant, was disallowed by the court. The correctness of this ruling is presented by the first exception. We can have no doubt that sueh general hearsay testimony was properly rejected, according to the most familiar rules of evidence.
The facts stated in the second exception, on which the plaintiff sought to obtain the opinion of the witness as to the mental capacity of Sarah Seward, are not materially different from those detailed in the case of Stewart vs. Reddit, 3 Md. Rep., 67. For the reasons there assigned this exception must be affirmed.
The third exception presents the question, whether the evidence offered by the plaintiff was legally sufficient to warrant the jury in finding a verdict for him? The objection to this prayer, that it is too general, under the act of 1825, ch. 117, cannot be sustained. If the prayer had asserted that the evidence offered was not legally sufficient, or that there- was no evidence, sufficient in point of law to maintain the issues joined on the part of the plaintiff, it would have been sufficiently specific in view of that act. According to the case of Cole vs. Hebb, 7 Gill & Johns., 20, where a party fails in proving any one essential fact, as for example the delivery as well as the sale of goods, there is a total failure of evidence, although he may have offered sufficient proof on all other material points. And in Farmers Bank vs. Duvall, 7 G. & J., 83, 95, it was held, that, where the jury are left to wild speculation and conjecture in drawing conclusions from the evidence before them, the court may on application inform them, that “there is no evidence, or no evidence sufficient in point [445]*445of law, to establish the fact sought to be proved." In the present case it was necessary for the plaintiff to show that the negroes mentioned in the pleadings, were the property of his intestate at the time of her death. But he offered no evidence tending to prove that fact. The witness said that he knew them, that they are descendants of Phillis, and that Phillis belonged to Sarah Seward, but it does not thence follow, that the children of Phillis belonged to her at the time of her death, or at any other time. Callis vs. Tolson, 6 Gill & Johns., 92. Again, at the stage of the trial at which this prayer was offered, there was nothing to show how the defendant had obtained possession of the negroes in dispute. In the absence of facts amounting to a conversion of the property to his own use, it was necessary to have proved a demand and refusal, yet no such evidence was offered. The court then were right in saying to the jury, that there was no evidence offered to sustain the issues on the part of the plaintiff.
It appears by the fourth exception that a negro named Charles had belonged to Sarah Seward, and a witness was asked, whether he had hired Charles and from whom? to which the defendant objected. We cannot perceive what relevancy this inquiry had with the case. This negro does not appear to have been one of those mentioned in the pleadings. Sometimes interrogatories are propounded, having no apparent connection with the subject matter of the suit, which, however, may be received on a statement of the purpose for which the testimony is proposed, and in connection with other facts to be proved. But the present exception does not present any such case. The counsel for the appellant supposed an aspect of the case in which this inquiry might become pertinent, if answered in a particular way. For aught that appears it might have been answered differently. We must decide the case as presented by the record, and not upon hypotheses slated here, which might not have been verified at the trial below.
The question propounded in the fifth exception, was clearly [446]*446inadmissible for the reasons stated in 3 Md. Rep., 67. The additional facts mentioned by the witness did not materially improve the plaintiff’s case, on the question of mental capacity. Besides the witness himself stated that he never had had any conversations with the party, from which he could form any opinion on that subject.
We think the court erred in not admitting the interrogatory to Hubbard, offered in the sixth exception. He had given evidence of facts which had induced in his mind the impression, that Sarah Seward was foolish and simple. And upon which he may have formed an opinion as to her capacity to transact business, or make contracts. The case made by this prayer is stronger than the proof offered in the second find fifth exceptions on this subject. We are not to say what value the jury were to have put upon the opinion of the witness formed from the facts proved. The evidence offered was within the principle recognized in the case of Townshend’s Will, 7 Gill, 10.
As to the admissibility of evidence on the question of insanity in cases like the present, we need only say that it was competent, according to Key vs. Davis 1 Md. Rep., 32, where it was held that privies in representation may show the infirmity of the testator or intestate, on the authority of Beverly’s Case, 4 Coke, 124.
We do not discover that John Marshall, offered by the defendant, in the seventh exception, had any disqualifying interest in the event of the suit. His connection with the estate of his father as a distributee, may have given him an interest in the question before the court, inasmuch as a suit was pending against his father’s trustee, in which other negroes were in controversy, but such an interest does not disqualify a witness, even if the fact of the pendency of the same title in that action appeared. And as to his interest as one of the distributees of Sarah Seward, he was called to testify by a party claiming against his right as such distributee, and his testimony would have been against his interest, being offered in support of the defendant’s title.
[447]*447We are at a loss to imagine any reason for objecting to the receipt offered by the defendant in the eighth exception. To be sure, as the case then stood, there was no necessity for any proof on his part; but if he chose to offer evidence of his title, there was no reason for excluding this paper. It was said in argument, that there was no evidence of the delivery of the paper. This we think is sufficiently answered by the fact of possession by the defendant, claiming under the party in whose favor it was executed. 3 Md. Rep., 67.
The objection to the evidence of James Wright, offered in the ninth exception, may be disposed of as was that to the competency of Marshall in the seventh; with the additional remark, applicable to both, that the supposed liability of Elijah Marshall’s estate to the defendant, for the value of the negro, under an implied warranty of title, in case the plaintiff recovered, did not give the witness a greater interest in defeating the action, as far as we can perceive, than his interest in Sarah Seward’s estate, in case the plaintiff recovered; and his interest being at least balanced he was competent.
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Tuck, J.,
delivered the opinion of this court.
This is an action of trover instituted by the appellant against the appellee to recover the value of certain negroes, as the-estate of Sarah Seward. At the trial the plaintiff proposed to ask a witness, “if he had ever heard the title of Sarah Seward disputed,” which question being objected to- by the defendant, was disallowed by the court. The correctness of this ruling is presented by the first exception. We can have no doubt that sueh general hearsay testimony was properly rejected, according to the most familiar rules of evidence.
The facts stated in the second exception, on which the plaintiff sought to obtain the opinion of the witness as to the mental capacity of Sarah Seward, are not materially different from those detailed in the case of Stewart vs. Reddit, 3 Md. Rep., 67. For the reasons there assigned this exception must be affirmed.
The third exception presents the question, whether the evidence offered by the plaintiff was legally sufficient to warrant the jury in finding a verdict for him? The objection to this prayer, that it is too general, under the act of 1825, ch. 117, cannot be sustained. If the prayer had asserted that the evidence offered was not legally sufficient, or that there- was no evidence, sufficient in point of law to maintain the issues joined on the part of the plaintiff, it would have been sufficiently specific in view of that act. According to the case of Cole vs. Hebb, 7 Gill & Johns., 20, where a party fails in proving any one essential fact, as for example the delivery as well as the sale of goods, there is a total failure of evidence, although he may have offered sufficient proof on all other material points. And in Farmers Bank vs. Duvall, 7 G. & J., 83, 95, it was held, that, where the jury are left to wild speculation and conjecture in drawing conclusions from the evidence before them, the court may on application inform them, that “there is no evidence, or no evidence sufficient in point [445]*445of law, to establish the fact sought to be proved." In the present case it was necessary for the plaintiff to show that the negroes mentioned in the pleadings, were the property of his intestate at the time of her death. But he offered no evidence tending to prove that fact. The witness said that he knew them, that they are descendants of Phillis, and that Phillis belonged to Sarah Seward, but it does not thence follow, that the children of Phillis belonged to her at the time of her death, or at any other time. Callis vs. Tolson, 6 Gill & Johns., 92. Again, at the stage of the trial at which this prayer was offered, there was nothing to show how the defendant had obtained possession of the negroes in dispute. In the absence of facts amounting to a conversion of the property to his own use, it was necessary to have proved a demand and refusal, yet no such evidence was offered. The court then were right in saying to the jury, that there was no evidence offered to sustain the issues on the part of the plaintiff.
It appears by the fourth exception that a negro named Charles had belonged to Sarah Seward, and a witness was asked, whether he had hired Charles and from whom? to which the defendant objected. We cannot perceive what relevancy this inquiry had with the case. This negro does not appear to have been one of those mentioned in the pleadings. Sometimes interrogatories are propounded, having no apparent connection with the subject matter of the suit, which, however, may be received on a statement of the purpose for which the testimony is proposed, and in connection with other facts to be proved. But the present exception does not present any such case. The counsel for the appellant supposed an aspect of the case in which this inquiry might become pertinent, if answered in a particular way. For aught that appears it might have been answered differently. We must decide the case as presented by the record, and not upon hypotheses slated here, which might not have been verified at the trial below.
The question propounded in the fifth exception, was clearly [446]*446inadmissible for the reasons stated in 3 Md. Rep., 67. The additional facts mentioned by the witness did not materially improve the plaintiff’s case, on the question of mental capacity. Besides the witness himself stated that he never had had any conversations with the party, from which he could form any opinion on that subject.
We think the court erred in not admitting the interrogatory to Hubbard, offered in the sixth exception. He had given evidence of facts which had induced in his mind the impression, that Sarah Seward was foolish and simple. And upon which he may have formed an opinion as to her capacity to transact business, or make contracts. The case made by this prayer is stronger than the proof offered in the second find fifth exceptions on this subject. We are not to say what value the jury were to have put upon the opinion of the witness formed from the facts proved. The evidence offered was within the principle recognized in the case of Townshend’s Will, 7 Gill, 10.
As to the admissibility of evidence on the question of insanity in cases like the present, we need only say that it was competent, according to Key vs. Davis 1 Md. Rep., 32, where it was held that privies in representation may show the infirmity of the testator or intestate, on the authority of Beverly’s Case, 4 Coke, 124.
We do not discover that John Marshall, offered by the defendant, in the seventh exception, had any disqualifying interest in the event of the suit. His connection with the estate of his father as a distributee, may have given him an interest in the question before the court, inasmuch as a suit was pending against his father’s trustee, in which other negroes were in controversy, but such an interest does not disqualify a witness, even if the fact of the pendency of the same title in that action appeared. And as to his interest as one of the distributees of Sarah Seward, he was called to testify by a party claiming against his right as such distributee, and his testimony would have been against his interest, being offered in support of the defendant’s title.
[447]*447We are at a loss to imagine any reason for objecting to the receipt offered by the defendant in the eighth exception. To be sure, as the case then stood, there was no necessity for any proof on his part; but if he chose to offer evidence of his title, there was no reason for excluding this paper. It was said in argument, that there was no evidence of the delivery of the paper. This we think is sufficiently answered by the fact of possession by the defendant, claiming under the party in whose favor it was executed. 3 Md. Rep., 67.
The objection to the evidence of James Wright, offered in the ninth exception, may be disposed of as was that to the competency of Marshall in the seventh; with the additional remark, applicable to both, that the supposed liability of Elijah Marshall’s estate to the defendant, for the value of the negro, under an implied warranty of title, in case the plaintiff recovered, did not give the witness a greater interest in defeating the action, as far as we can perceive, than his interest in Sarah Seward’s estate, in case the plaintiff recovered; and his interest being at least balanced he was competent.
After the above nine bills of exceptions had been reserved by the plaintiff below, a number of witnesses were examined and admissions introduced, upon which the plaintiff offered a variety of prayers, which we will dispose of in their order.
1 and 6. We concur with the court in their refusal to grant these prayers. Why was not the receipt to be regarded by the jury as affording evidence of title to the negro? The defendant claimed under Marshall, who, it was shown by the receipt, had bought the girl from Sarah Seward. The fact that no witness proved that he saw the delivery, can make no difference in this case. It was executed by the plaintiff’s intestate, and possession of it by the defendant claiming under Marshall, was at least prima facie evidence of delivery, as we have said under the eighth exception.
2 and 5. These prayers should have been granted. The receipt was not “to be regarded as establishing a title to the property,” unless it was delivered to Marshall, because de[448]*448livery is essential to the operation of such an instrument, and the question should have been submitted to the jury.
3. This prayer was properly rejected because it was good in part and bad in part. Budd vs. Brooke, 3 Gill, 198. We have said that the execution and delivery of the paper were evidence of title; but this prayer requires the jury also to find that the possession of the negro immediately followed, which was not necessary, if the jury were satisfied of the execution and delivery of the paper. Franklin vs. Long, 7 Gill & Johns., 407. The prayer would have been right, in so far as it relates to the mental capacity of Sarah Seward, at the time of the execution and delivery to Marshall, if it had not been connected with what we have said, was unnecessary to be found by the jury.
8. This prayer was correctly refused, because it assumes that the paper had not been delivered to Elijah Marshall, when there was evidence tending to prove that fact.
9. This prayer relates to the plea of limitations. From a defect in the record we cannot plainly discover the point decided by the court. If it was designed to raise the proposition, that the statute does not run whilst there are no letters of administration on a deceased’s estate, without reference to the time of the accrual of the cause of action, it was clearly wrong, because the operation of the statute cannot be suspended by the death of a party, against whom it has started in his lifetime.
12, 13, 14. These prayers do not require the jury, to find that Rose belonged to Sarah Seward. If she never had any title the plaintiff could not recover, no matter what other facts they might have found from the evidence. There was evidence in the tenth exception that she had owned Rose, in her lifetime, but these prayers do not submit the finding of that fact to the jury. The 12 and 13, are also defective in overlooking the question of conversion, which is essential in this form of action, and on which we will express our v-iews in considering the 14th and 21st prayers.
14, 21. The first of these asserts that certain facts therein [449]*449¿mentioned amount to a conversion fey the defendant; the last ©f them affirms that a demand and refusal are not necessary, as evidence of conversion. We are not to say whether, supposing Sarah Seward to have been non compos mentis, Marshall’s acts in reference to this property amounted to a conversion; bat we are called upon to determine whether the defendant, claiming and holding by a purchase and delivery from Marshall, can fee held liable in trover, without a previous demand and -refusal by him to surrender the -property. As this action equally lies where the taking has been tortious, or where the defendant has lawfully obtained possession of the plaintiff’s goods, and afterwards converted them, the mode in which he acquired possession is material, in determining what evidence is necessary to prove the conversion. It is well settled, that demand and refusal are not necessary in all cases, but this mode of showing the conversion cannot be dispensed with, where the party is in possession by finding, or by delivery from the plaintiff or a third person. 2 Philips Ev., and 1 Chitty’s Pl., Title Trover. Bull. N. P., 44. 2 Esp. N. P., 590, margin. 2 Saund. Pl. & Ev., 881. 2 Saund. Rep., 47, (c.,) Wilbraham vs. Snow. 2 Greenl. Ev., 642, 644. Brown on Actions at Law, 440. In the case of Severin vs. Keppell, 4 Esp. Rep., 156, Lord Ellenborough held, that what begins in contract is not to be considered as of itself amounting to a tortious conversion. And the Court of Appeals in Bohn vs. Headley, 7 H. & J., 257, reversed the judgment below, and refused a procedendo, where the defendant was in possession-•of the property, chiming uuder a deed from a party who had conveyed an absolute title, when he had only an estate for life. The suit w'as brought by the person entitled, after the •death of the party under whom the defendant claimed. There was no proof of demand and refusal, and the court held this defect to be fatal. We cannot distinguish the cases. Ia principle they are the same. The evidence here show's that the defendant purchased the property from Marshall, and that his possession commenced, and has continued under contract-We approve of the court’s refusal to grant these prayers.
[450]*450We concur with the court below as to the first, second, third, fourth, fifth, seventh, eighth and ninth exceptions, also as to the first, third, sixth, eighth, ninth, twelfth, thirteenth, fourteenth and twenty-first prayers, in the tenth exception. Upon the sixth exception, and the second and fifth prayers in the tenth exception, the judgment must be reversed, but a procedendo will not be granted. 7 H. & J., 257. Mudd vs. Harper, 1 Md. Rep., 110. As this disposes of the case on the merits presented at the trial, it is deemed unnecessary to express any opinion on the points of practice raised by the eleventh exception.
Judgment reversed with costs and procedendo refused.