Armstrong v. Simonton's adm'r

6 N.C. 351

• Court: Supreme Court of North Carolina
• Decided: July 15, 1818
• Status: Published

Opinion

Ham, Judge,

delivered the opinion of the Court:

If tiie Plaintiff’s husband had thought proper to have brought an action of detinue for the negroes in question, and it would have been necessary to have joined his wife with him in the action, it follows that as no action was brought, the property has survived to her. And it has been decided in Johnston et ux v. Pasteur, (Conf. Rep. 464,) as well as in several other cases, that it was necessary to make the wife a party, because she was the meritorious cause of action.

But we think those cases arc unlike the present, because there the Defendant hold adversely; here the Defendant claims under the bailment of the wife when sole and it seems to be admitted in the case of Johnston et ux v. Pasteur, that when the Defendant is a trustee for the husband, then the husband may bring suit in his own name,* in other words, that the possession of the bailee was the possession of the husband and tit at therefore the right of the husband was complete.