Kidd v. . Morrison , 62 N.C. 31 ( 1866 )

The bill is filed for the rescission of a deed of (32) release and quit-claim for a negro slave named Tom, on an allegation of fraud in obtaining its execution.

At the filing of the bill the slave was in the possession of the complainant, and continued in her possession up to the time of his emancipation by act of law. So that the bill presents no question in respect to profits or hires, and the sole question made is in respect to the title.

That question is now gone. It has passed away by the political death of the slave, as completely as if he had died a natural death. There being no longer any subject matter of controversy, the question arises whether the court will hear the cause, and make a decree that can only serve to dispose of the costs?

To say nothing of the labor and consumption of time in wading through a mass of depositions, and weighing the learned arguments which the hearing would elicit, the court does not consider itself at liberty to go into a hearing, for the reason that there is nothing now before it but a mere hypothetical case, and any declaration of principle set out in the decree would be entitled to, and would receive, no more consideration than mere dicta.

It was suggested at the bar, that the complainant has no longer a cause of suit, the bill ought to be dismissed at her costs. If the slave belonged to her, it is hard enough that she must bear the loss caused by the act of law. Whether she ought to pay the costs depends upon whether the act of the defendant which gave rise to the suit was wrongful or not, and that can not be determined without hearing the cause.

The bill will be dismissed without prejudice; the parties each to pay their own costs, as if the suit had abated.

PER CURIAM. Bill dismissed.

Cited: Broughton v. Askew, ante, 22; S. v. R. R., 74 N.C. 289; May v.Darden, 83 N.C. 239; Hasty v. Funderbunk, 89 N.C. 94.

(33)