—In England, as the power to grant letters testamentary, or of administration, is lodged exclusively in the Ecclesiastical Courts, the act of those courts in cases in which they have the power to act, has always been held conclusive (Cow. & Hill’s Ph. Ev., 1 vol. 343); and the same rule is applied in the same cases in this country, to those courts to which this power is given by statute. — Wells’ Will, 5 Litt. 214; Brown v. Gibbon, 1 Nott & McC. 236; 1 Pick. 535, 541; 14 ib. 280. But the sentences of these courts, like those of every other court, are assailable for want of jurisdiction, and whenever a suit is. brought by one on his title as administrator, if the facts in the plea show that the court which granted the letters had no authority to act, the plea is good.— Buller, J., in Allen v. Dundas, 3 Term R. 130; 2 Cow. 6 Hili’s Ph. Ev. 364. The ground on which the second plea rests is, that the court had not the power to grant letters in any case where the decedent was not a resident of, and had no effects in this State at the time of his death; but in Robinson v. Robinson, 11 Ala. 947, we hold directly the contrary, and we are satisfied with the correctness of this decision. The case last cited disposes of the second plea, and makes the third rest, alone, on the fact that the application for letters did not allege that there was any property belonging to the estate of the deceased within Mobile county. We incline to the opinion, that, looking at the whole application, and applying the rules of construction with the liberality which we think should obtain in regard to proceedings in the Probate Court, the allegation of property in the heirs was equivalent, under the circumstances, to an assertion of title in the estate. But it is unnecessary to go so far; for we are satisfied, that, giving to the application the construction contended for by the appellant, the applicant would not have been held down to the ground stated in the petition. It was not the allegation of the petition which gave the court authority to act, but the fact that there was property belonging to the estate of the decedent .within the State at the time the letters were issued; and as the plea does not negative the existence *260of this fact, it fails to show the want of jurisdiction. The view we have taken is conclusive as to the second and third pleas and the first charge requested.
In relation to the other points: The case must be reversed on the instructions given to the jury, that in the absence of any proof as to what the hire of the slave sued for was worth, they might give interest on the agreed value of the slave by way of damages. The damages, in an action of detinue, are for the detention of the thing sued "for ; and in case of slaves, the value of the hire is the best, if not the only criterion of the injury occasioned by the detention. These damages should be proved, and if not established by the evidence, a nominal sum only should be given. It is true, that the hire of slaves is generally worth the interest on the' money; but upon the same principle, if a slave was generally worth one hundred dollars, or a horse thirty, we might dispense with any proof of the value whatever. Such a rule would be entirely too loose, especially in cases in which more satisfactory evidence could always be offered; and in such cases the failure to offer testimony would, upon a familiar principle, operate against .the party on whom the law cast the onus. The measure of value which the law fixes for the use or detention of money, cannot, with any propriety, be applied as the rule of compensation for the use of a, slave.
The question we have just determined not going to the merits of the case, it is proper, with reference to the conduct of the cause on another trial, to consider the other questions presented upon the record ; the principal of which is, as to the right of the appellant to set up the title of Mrs. O’Dono-ghue in order to protect himself. In discussing this question, we do not consider it necessary to pass upon the evidence contained in the record. It was treated by the court below as conducing- to establish such a title, and we shall so consider it.
It is certainly true, that in the action of detinue, the plaintiff may recover upon possession alone, against any one who has not as good a right to the possession as himself. He recovers on the right ho has to have the thing delivered to him. Where the possession alone would entitle the plaintiff to a recovery, we do not gee how the other party could defeat it, *261by proving title in a stranger unless be connected himself with it, thus proving that he had the better right. But where the claim is based not upon possession, but on the title, there the claim may always be disproved by showing that the title is not in the plaintiff, but in another. Thus, if the plaintiff was to show that he was the owner at a period anterior to the suit, the defendant might well show that he had parted with the title before the commencement of the action, and thus defeat a recovery, — not by showing any right in himself, but by proving that the other party did not occupy a position which would entitle him to recover. In the present case, therefore, the defendant below might properly have set up the title in Mrs. O’Donoghue, unless he was estopped by the act of the party under whom he claimed, or unless the possession of the plaintiff prevented him. Conceding that Mrs. Can-field actually held the possession of the slave for the estate of Jones, we think she would be estopped from denying the right of possession to be in that estate, because such a denial would be inconsistent with the relation she occupied. It is clear, also, that her declarations to that effect, while in possession of the property, would be evidence as to the character of her possession, — not conclusive, — but entitled to such weight as, under all the circumstances, they deserved ; but if they satisfied the jury of the fact that she so held, then her possession would be the possession of the estate, and the appellant, claiming through her and obtaining her right only, could not set up a title in a third person, at least without connecting himself with it.
Applying these principles to the charges given, the first charge was correct. The second was erroneous, as it asserted, in effect, that although the claim of the plaintiff was based upon neither the title nor the possession of the estate of Jones, a recovery could be had upon the evidence disclosed by the record. We say this was the effect of the charge, for the reason that, if the evidence proved that Mrs. O’Donoghue, as the wife of Jones, held a sepai’ate estate in the mother of the slave sued for, then, on the death of Jones, by renouncing the acquits and gains of the common property, and causing an inventory to be made of the property of her deceased husband, she acquired a perfect title to her separate property *262(Civil Code of Louisiana, arts. 2314, 2315, 2379, 2380, 2382, 2384) and if the jury did not find that Mrs. Canfield held the possession of the slave for the estate of Jones, the right of the administrator to recover would turn upon the fact as to whether the title was in the 'estate; and this would be disproved, by showing the title to be in another, without connecting himself with it.
In relation to the laws of Louisiana upon the question of title by prescription, we think the-ruling of the court was correct. By the Civil Code of that State, (Art. 2415,) it is required that all sales of slaves “ shall be made by authentic act, or under private signature”; and all verbal sales of that species of property are declared null. By reference to the several articles of section 2, chapter 23, (page 521,) it will be seen, that slaves without title cannot be prescribed, except by a possession of fifteen years. Article 3444, which was relied on by the appellant, allows a prescription for slaves with title by a possession of five years; but we construe this article with reference to article 2415, which, in effect, declares verbal titles to be void.
What we have said will be sufficient for the correct conduct of the cause upon another trial, upon the questions presented by the present record.
Judgment reversed, and cause remanded.