Arnold v. Executrix of Lanier, 4 N.C. 529, 1 Car. L. Rep. 529 (1814)

April 1814 · Supreme Court of North Carolina

4 N.C. 529, 1 Car. L. Rep. 529

Arnold v. The Executrix of Clement Lanier.

The plaintiff declares in deceit, for, that defendant’s testator sold to him, as sound, a negro which he knew to be unsound. The defendant pleads that her testator was not guilty, and that she had fully administered, &c. The Jury found her testator guilty, assessed damages, and that she had fully administered. It is referred to the Supreme Court to say what judgment shall be entered. The plaintiff wishes to proceed against the real estate.

Seawell, J.

delivered the opinion of the Court.

The act of 1799, Chap. 18, §5, declares that no action of detinue or trover, or action of trespass, where property, either personal or real, is in contest, and such action of trespass is not merely vindictive, shall abate by the death of either party. This is an action of trespass, though not vi et armis, and the passions and feelings have no concern. It is, in substance, to recover for an act done by the defendants testator, whereby he has been made richer, and the present plaintiff poorer.

Wherefore, we are all of opinion that the plaintiff is entitled to judgment, and that scire facias be awarded against the testator’s heirs and devisees.