Curia, per

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 *53shewed 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.