| N.C. | Dec 5, 1860
The plaintiff declared for a deceit and false warranty in the sale of a slave against the defendants as executors of Edley Gingles. The proof was that after the defendants qualified as executors of said Gingles, that they offered the slave in question at public sale, and that plaintiff became the purchaser. He also gave evidence of the unsoundness of said negro, and that the defendants were aware (303) of it at the time of the sale.
Defendants' counsel asked his Honor to charge the jury that plaintiff could not recover against them in their representative capacity, but that if they had practiced a fraud or deceit on the plaintiff in the sale of the said negro, they were personally responsible for it, and that the estate of their intestate could not be charged therewith. His Honor refused so to charge, but told the jury that if they believed from the testimony that the negro was unsound at the time of the sale, and that defendants were aware of it, and did not disclose it to the purchaser at that time, the action was well brought, and the plaintiff was entitled to recover.
Verdict and judgment for plaintiff. Appeal by defendants.
Where an executor sues upon the possession of his testator, he must sue as executor, because he must make profert [proffer], in his declaration, of his letters testamentary; but if he sue upon his own possession, he must sue in his own name, because his possession has fixed him with assets. If, however, he sue "as executor" when the action is brought upon his own possession, the words "as executor" are considered as mere surplusage. Hornsey v. Dimocke, Ventris, 119; Com. Dig. Pleader (I. D. I.); Cotten v. Davis,
PER CURIAM. Venire de novo.
Cited: Kessler v. Hall,