Pitts v. Hale

3 Mass. 321

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1807
• Status: Published

Opinion

Curia.

If the defendant in replevin die pending the suit, his executor or administrator cannot come in and defend, because the action is founded on a tort, which does not survive against the executor or administrator

(3). But if the plaintiff in replevin die, his executor or administrator may come in and prosecute, within the equity of the statutes of 4 Ed. 3, c. 7, and 31 Ed. 3, c. 11. In Wentworth’s Off. of Executor, 66, it is held that at common law an executor might maintain replevin for the goods of his testator taken in his lifetime.

Judgment according to verdict.

[Vide Thayer vs. Dudley, ante, 296.—Barnard vs. Harrington, ante, 228.—Ed.]