McKinnie v. . Oliphant

2 N.C. 4

Opinion

The only judge in Court, held that trover, trespass, deceit, or any other action of the like nature, will lie against executors, where the thing itself has been used so as to go into and increase the testator's estate, so that the benefit thereof comes to the possession of the executor; otherwise where the thing is destroyed, as if a man take my bullock and eat him. Hambly v. Trott, in Cowper is not law; and further, I never knew a case in Cowper to be received as law in our courts. (4)

See Decraw v. Mone, post, 21; Clark v. Hill, post, 308; Avery v. Moore,post, 362. In the last case cited the article of property for which the action was brought did not go into and increase the estate of the testator; but it was decided that that made no difference. There is authority that the expression attributed to WILLIAMS, J., in this case, that he "never knew a case in Cowper to be received as law in our courts," is a mistake, and was never used by him.