Mason , 1 N.C. 167 ( 1793 )

Doderidge, J.

The tort continues to the testator during his life, and after his death, his testament cannot be so well performed.

Jones, J.

This seems to me to be a mere personal tort, for which there is no remedy; for it cannot be within the statute de bonis asportatis; and at common law, the executor cannot have trespass. But replevin or detinue, the executor may have: for the property still continues. He could not have ejectione firmœ, at common law, for the thing itself was not recoverable. But he may have covenant, or quare ejecit infra terminum. But by the equity of the statute now he shall have ejectione firmœ, ravishment of ward, and quare impedit. It was so adjudged in 32 and 33 El. in C. B. in the case of the Bishop of Lichfield, that she execute or shall have a quare impedit of a disturbance to the testator and in 40, 41 El. in C. B. and afterwards on a writ of error here, it was adjudged that trover and conversion lies on an act in the life of the testator. This case at common law, was a mere tort, and the executor cannot have trespass. It seems that the stature does not reach this case: for the arrest. and imprisonment cannot be said to be de bonis or catallis of the testator.

Whitlock, J.

This is a personal tort, and may be considered in two points of view; either as a crime to be punished, in which case moritur cum persona; or as an injury to the party, in which case it is reasonable that the executor should have a remedy.

Adjournatur : and afterwards it was argued by the court.

Doderidge, J. and Whitlock, J. pro quærente. It is no injury to the person of the testator, but to his estate; and as action lies for the executor, who, as to the personal estate, represents the person of the testator. Therefore the action well lies, under the equity of the statute.

Crew, C. J. and Jones, J. e contra. The action did not lie at common law, and this is not de bonis et catallis, within the statute.

Jones, J. But I will not say it would be so, if the escape was after a capias ad satisfaciend.

Doderidge, J. and Whitlock, J. Bona et catalla are properly personal chattels, but *by equity this has been extended to the realty, as ravishment of ward, ejectione firmœ, quare impedit, trover and conversion.

The court say they would determine the point, one way or the other, in the course of the term.

Nota. The statute extends to a tort, to the personal estate, but not to an injury to the person, or inheritance, as waste &c. 1 Roll. 913. Noy 87. Jones 173. Poph. 189. Bendl. 200. 3 Car. 297. 1 Car. 141. 207.