Wardens of Hyde v. Silverthorn, 28 N.C. 356, 6 Ired. 356 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 356, 6 Ired. 356

WARDENS OF HYDE vs. JORDAN SILVERTHORN, Ex’r. &c.

An executor de son tort cannot be called upon to support a disabled slave of the deceased, under the act of Assembly, (Rev. Stat. ch. 89, sec. 19).

Appeal from the Superior Court of Law of Ilyde County, at the Fall Term, 1845, his Honor Judge Battle presiding.

The following are the only facts upon which this Court thought it necessary to pronounce the law:

This was an action of assumpsit, brought to recover money paid by the plaintiif to the use of the defendant. The wardens had maintained an aged slave, named Susan, belonging to the estate of Robert Silverthorn, deceased. The defendant pleaded “ Ne unques executor,” and the plaintiff replied, that he was an executor de son tort. Under the charge of the Court, the plaintiff had a verdiet and judgment; and the defendant appealed.

No counsel for the plaintiffs.

Shaw, for the defendant.

Daniel, J.

By law, (Rev. Stat. ch. 89, s. 19,) the owners of old and disabled slaves shall provide for and maintain them. And if the owner will not, the wardens of the poor of the County are required to maintain them and charge the price to the owner; and may sue him for the same. Section 20 declares, that if any owner shall be dead, the executor or administrator shall provide for such old and disabled slaves ; and so with respect to the guardians of infant wards. And upon failure so to do, the wardens shall provide for such slaves, and proceed against such executors, administrators and guardians, as the owner. And such executors, administrators and guardians, shall be allowed the expense of making such provision for such slaves in their settlements. Section 21 declares, that the wardens of one County may remove such old and disabled slaves to the owner or to the executors and administrators of a deceased owner, residing in another County, or to any guardian of the owner, at the expense of such owners, executors, administrators or guardians. We think that the wardens have no right to charge, for the maintenance of old and ■disabled slaves, any other person or persons than those who are the owners of such slaves by law. The defendant was not the owner of the slave ' Susan ; he never took her into his possession or set up any claim to her; he, in law, had no right to her ; and therefore the law throws no obligation on him to maintain her. The fact that the defendant wrongfully intermeddled with other parts of the personal estate of Robert Silverthorn, did not make him liable under the statute to the wardens, for the maintenance of the slave Susan. The clause respecting executors, we conceive, refers to rightful executors, not only for the reason already given, but also because the disbursements of the executors, for a disabled slave, are to be allowed in their settlements — a provision not properly applicable to an executor de son tort who is not called on to make the “ settlement” in the provision pf the act.

PER CuRiam. New trial awarded.