
    Thomas Tomlinson, sen. vs. Martha Tomlinson and Thomas Tomlinson, jr.
    In an action by a father against the administrators of his son for slaves which the father had allowed to go into, and remain in, the possession of the son, the administrators cannot show the son’s insolvency, in order to defeat the action for the benefit of creditors.
    BEFORE GLOYER, J., AT CHESTERFIELD, SPRING TERM, 1857.
    Tbis was an action of trover for tbe alleged conversion of fifteen negroes.
    Tbe plaintiff was tbe father of Henry M. Tomlinson, deceased, tbe intestate of tbe defendants. In 1833, Henry M. Tomlinson married tbe defendant Martba, and during that year tbe negroes were allowed by tbe plaintiff to go into bis possession in North Carolina, where father and son both resided. In 1839, Henry M. Tomlinson removed, with bis family and tbe negroes, to Cheraw, and there resided until bis death in 1855, tbe negroes remaining with him tbe whole time. Much evidence was given on both sides ; and for tbe defendants evidence of tbe extent of Henry M. Tomlinson’s indebtedness and of tbe value of bis property, was given, from which it appeared that, if a certain claim against tbe estate was established, it was insolvent.
    His Honor charged tbe jury upon tbe several questions growing out of tbe evidence, and, inter alia, be instructed them that, if they believed tbe estate of Henry M. Tomlinson was insolvent, tbe possession and apparent ownership of tbe slaves by him and by tbe permission of tbe plaintiff, for so many years, was a fraud upon tbe creditors of tbe intestate wbo trusted Mm in tbe confidence of bis right of property in tbe slaves.
    Tbe verdict was for tbe defendants; and tbe plaintiff appealed, and now moved tbis Court for a new trial, on several grounds, tbe sixth and seventh being as follows:
    6. Because bis Honor charged tbe jury that if they believed tbe estate, of which tbe defendants were administrators, was insolvent; then tbe fact that H. M. Tomlinson apparently held tbe slaves as bis own, was sufficient to warrant them in finding for tbe defendants.
    7. Because there was not sufficient evidence of tbe insolvency of tbe said estate; and it is respectfully submitted that, in tbis case, where judgment creditors were not before tbe Court, it was incumbent upon tbe defendants to show tbe insolvency of tbe estate, by tbe clearest and most conclusive evidence.
    Mclver, for appellant.
    Tbe rights of creditors are not involved in tbis case. They would not be concluded by a verdict for plaintiff; hence there was error in tbe charge, that, if tbe estate of Henry M. Tomlinson was insolvent, Ms long possession and apparent ownership of tbe slaves with tbe permission of tbe plaintiff,, was a fraud upon bis creditors. Alexander vs. Maxwell, Bich. Eq. Cas. 302; Chappell vs. Brown, 1 Bail. 528.
    Inglis, contra.
   Tbe opinion of the Court was delivered by

O’Neall, J.

Tbe defendants are tbe administrators of Henry'M. Tomlinson, deceased. They undertook, and were allowed on tbe trial of tbis cause to show Ms insolvency, so that slaves found in bis possession, and claimed to be tbe property of tbe plaintiff, might, on account of tbe legal fraud on creditors, be adjudged to be bis property. Tbe case of Crosby vs. Shelton, cited in Chappell vs. Brown, 1 Bail. 531, ruled that an administratrix could not set up tbe indebtedness of ber intestate, as a ground to defeat bis gift of chattels. This ruling was recognised, and affirmed in Anderson vs. Belcher, 1 Hill, 249, note. These decisions proceed upon tbe ground, that tbe administrator represents tbe person of bis intestate, and cannot set up anything which be could not. Here beyond all doubt tbe deceased could not set up bis own indebtedness and insolvency, against bis father’s claim to property, in bis possession.

Tbe motion for a new trial must therefore be granted on tbe seventh ground, and it is accordingly so ordered.

WhitNer, Glover and MüNro, JJ., concurred.

Motion granted.  