Opinion · Supreme Court of North Carolina

Arnold v. . Lanier

Arnold v. . Lanier, 4 N.C. 143 (N.C. 1814)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1814-01-05
Topic
litigation

The act of 1799, ch. 18, sec. 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 defendant's 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. Cited: Molton v.

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Cited by
1 opinion
ARNOLDv. LANIER,4 N.C. 143(1814)
ARNOLD v. CLEMENT LANIER'S EXECUTOR. — 1 L. R., 529.
Supreme Court of North Carolina
(January Term, 1814.)
An action for deceit in the sale of a chattel will lie against the executors or administrators of the seller, under the act of 1799 (1 Rev. Stat., ch. 2, sec. 10).
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, etc. The jury found her testator guilty, assessed damages, and that she had fully administered. It is referred to the Supreme Court toPage 114say what judgment shall be entered. The plaintiff wishes to proceed against the real estate.
SEAWELL, J.
The act of 1799, ch. 18, sec. 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 notvi et armis, and the passions and feelings have no concern. It is, in substance, to recover for an act done by the defendant's 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 thatscire faciasbe awarded against the testator'sheirsand devisees.Cited: Molton v. Miller,10 N.C. 498;Helme v. Sanders, ib., 565;Butner v. Keelhn,51 N.C. 61.

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