decided against the plaintiff principally on the last ground ; thinking that such possession constituted a special property sufficient for a recovery in detinue.
Verdict accordingly.
§>uere de hoc.
Wade v. Edwards, 3 N.C. 221, 2 Hayw. 221 (1802)
Oct. 1802
·
North Carolina Superior Court
3 N.C. 221, 2 Hayw. 221
Wade vs. Edwards.
HPIIIS was an action of detinue for negroes, belonging to the estate of the father of the defendant. He left his widow executrix. He died in Virginia, leaving a will and his personal estate, part in Virginia and part in this state. The widow after qualifying and giving security, as required by the laws of Virginia, inter-married with Cheatham, who becoming insolvent, the estate of the testator was ordered into the hands of the sureties, pursuant to the laws of Virginia: and the plaintiff, one of them, having obtained a short possession of the negroes in question, who were in this state at the time of the death of the testator, sued the defendant, who afterwards got the possession.
It was argued for the defendant, first — That the probate in Virginia, enabled the executor to intermeddle only with the property there, and the sureties were only bound for the property which the probate enabled him to receive into his possession, which was only the property in Virginia: Consequently, the sureties had no right to interfere with the property in this state. For this were cited 1 Vern. 39’/. ll Viner 58. 1 H. Bl. Re. 153, 154. Toller, 47. Secondly---!! he had no authority here, then the possession he took was a tortious one, and could not make a special properly in him. 7 Term, 397,393,