Mason v. . Davy

1 N.C. 754

• Court: Court of King's Bench
• Decided: July 5, 1793
• Status: Published

Opinions

Jermyn, e contra. An executor shall not be charged for an escape, although he may have an action upon it. So an account lies for, but not against, him. Although it is a personal action, and it died with the person of the testator at common law, yet it is otherwise now, for it is within the statute de bonis asportatis. As replevin lies for an executor for a taking in the life of the testator. F. Executor, 106, and F. account, 257; 7 H., 4, 25. But he cannot have an action of trespass unless within the equity of the statute. If tenant by elegit recovers in assize, and dies, and his executor be ousted, under the statute he may have a redisseizin, 7 H., 4, 7. Ejectione firmae is within the equity of the statute. Dyer, 201. Attaint lies against an executor, although the statute speaks only of the party. So in 6 Rep., 8, Phitton's case. The statute pardons the party; the executor shall have the benefit of it. *In this case the taking of the body is in the nature of a pledge. 5 Rep., 27. Trover and conversion lies by an executor on a conversion in the lifetime of the testator.

Calthrop [on the same side]. F. N. B., 121. If a man recovers a debt and damages, and the party is imprisoned and escapes, and the plaintiff dies, his executor shall have an action, for the sheriff, by the escape, is instantly become the debtor. The tort continues to the testator during his life, and after his death his testament cannot be so well performed.