From Halifax.
A slave hired out is a chose in the possession of the owner. Therefore, when the slave of a feme sole was, before her marriage, hired for a year, and the husband died during the term, the property does not survive to the wife, but vests in the personal representative of her husband.
Upon this verdict, his Honor, Judge Daniel, gave judgment for the plaintiff, and the defendant appealed.
HENDERSON, J.
This case depends upon the effect which a contract of hiring has upon the possession. If it divests the owner of the possession and places it in the person hiring, the thing hired ceases to be a chose in possession, and becomes a chose in action, and therefore does not pass absolutely, but sub modo only, from the wife to the husband, upon their intermarriage.
A contract of hiring is not a sale of the thing for the period of hiring; the property remains as it did before — it is a contract for the use of the thing hired. The hirer is a mere bailee, or locum tenens for the owner, and only holds the property for him. The general property draws to it the possession, as long as the occupant, or qualified owner, retains the occupancy. At any rate, the possession of the hirer is not a possession for himself, for nothing is more common than the maxim that the possession of the bailee is that of the bailor; and hiring is a species of bailment. If the hirer possessed for himself, he could not possess for another, whose possession has continuance and is exclusive of his. He is called the qualified owner, not to express his ownership, or that he has any part of the property, but for want of a proper term to express his interest in it.
I therefore think the owner's possession is not disturbed by the hiring; that the occupancy of the hirer is perfectly consistent with it, and therefore does not divest it; that the owner has such a possession that he may either sell or give the property. Of course, in the present case the marriage was a complete gift of the slave in question to the first husband. (312) For an inability to give, sell, or transfer is the reason why the marriage is not a perfect gift of the wife's choses in action to the husband, they being incapable of a complete transfer, not for the reason generally given, that it is selling a right of going to law, and thereby stirring up lawsuits, but because such things are not property, and property only is the subject of transfer.
PER CURIAM. Judgment reversed, and judgment for the defendant.
Approved: Granberry v. Mhoon, 458, post; Pettijohn v. Beasley, 15 N.C. 512; Carter v. Spencer, 29 N.C. 14.