17 Johns. 296 | N.Y. Sup. Ct. | 1820
delivered the opinion of the court.
If the sale of the negro man by the plaintiff was not in his representative character, as executor in the right of his wife, Susan Thornton, but in his private capacity, then the nonsuit Is right; for it would have been in violation of the statute ; the slave would become free, and consequently there would be a total failure of the consideration of the note. The case of Sable v. Hitchcock, (2 Johns. Cas. 79.) decided, that the sale of a slave imported into this state since the passing of the act of the 22<l of February, 1788, in the course of administration, or by persons acting in outer droit, would not be within the act so as to subject the vendors to the penalty, or to emancipate the slave, if the sale was free from collusion.
In the present case, the facts show that the sale was not made by the plaintiff as executor of Thornton. Mrs. Thornton, with whom the plaintiff intermarried, was the legatee of all her former husband’s personal estate, and she was also ex-cculrix. Thornton died in 1806, and the negro in question was sold by the plaintiff in 1813; and it does not appear that Thornton owed any debts. Now, as Mrs. T. was legatee and executrix, it was competent to her to take as legatee. If the
Motion denied.
