
    [Pittsburgh
    September 11, 1827.]
    KEITE, Administrator of KENNEDY, against BOYD.
    in error.
    Replevin does not abate by the death of the defendant, while the suit is pend- ■' ■ mg-
    A writ of replevin was issued out of the Court of Common Pleas of Somerset county, the 8th of Jlpril, 1822, to May Term of that year, by James Boyd, the defendant in error, against John Kennedy for. a gray mare. Kennedy, the defendant below, gave bail to the sheriff, and retained the possession of the mare.' In 1823, pending this action, Kennedy died. At December Term, 1S23, the death of the defendant below was suggested, and John Keite, surviving administrator of the deceased, was substituted by consent, and pleaded “noncepit” and “property,” upon which issue was joined. On the 4th of December, 1824, a trial was had by a jury, and a verdict for one hundred dollars, in favour of the plaintiff below. On the same day a motion was made in arrest of judgment, which was held under advisement until the 5th of February, 1825, when, on motion, judgment de 'retorno habendo,” was entered.,
    The plaintiff in error assigned for error,
    1. The court below erred in entering judgment against the plaintiffin error, the administrator of Kennedy, inasmuch as the action died with Kennedy, he being the defendant therein.
    2. If the plaintiff below was entitled to a judgment in his favour on the verdict of the jury, it ought to have been a judgment, “ quod recuperet de bonis, SfcB and not “ de retorno habendo,” and therefore there is error in the judgment entered by the Court of Common Pleas.
    Kennedy, for the plaintiff in error.
    The question is, whether the action of replevin abates by the death of the defendant, I contend it does.
    Replevin lies for goods unlawfully detained, though the taking has been lawful. 15 Mass. 359. 17 Mass. 610. The action of replevin survives the death of the plaintiff, but not of the defendant. 3 Mass. 321. Replevin abates by the death of the defendant. Miller v. Baldwin, 4 Mass. 480. Action against the sheriff for escape, if one of them dies, the suit does not abate. Cro. Eliz. 265. Trover lies not against executors for coversion by his testator. Hambly v. Trott, Cowp. 372. 5 Serg. & Rawle, 272.
    
      Forward, for the defendant in error.
    The reason why trover does not survive, is that the plea is non cepit. In replevin, property is in question. If replevin does not lie, no action lies.
    
      
      Kennedy, in reply.
    I do not admit that no other action lies. If the goods came to the hand of the administrator, replevin would Me against him. If the intestate converted them into money, an action against his administrator for money had, &c. lies. This court decided, that an action for breach of promise of marriage abates by the death of the defendant. This court will not confound the forms of action.
   The opinion of the court was delivered by

Rogers, J.

At common law, all personal actions died with the party. The inconvenience and injustice of this rule, as respects the death of parties’ plaintiffs has been remedied, in cases of trespass de bonis asportatis, trover, and replevin. The rule seems to have been founded on the reason that as the assets of the deceased are not benefited, his estate shall not be liable, and from a desire, I suppose, to have an end to an action frequently arising from the passions of the parties. ” In those, cases where the reason applies, the rule is founded-on the soundest principles of public policy; as in the case of slander, libel, and the like. It does not apply where the matter in dispute involves a right of property. Where one man receives the property of another, his fortune ought to answer it, for that swells the assets in the hands of his personal representatives. In'contravention of this rule, it has however been decided that trover abates by the death of the defendant. 6 Serg. & Rawle, 272. Without venturing to deny the authority of that case, I may be permitted to regret that such is the law of Pennsylvania; and am unwilling to extend the cases further than we are bound to do by theprinciple of state decisions. Replevin in this state is an'action to try the. right of property. It issues wherever a man claims goods in the possession of another, without any regard to the manner in. which the possession was obtained. 1 Dall. 157. 6 Binn. 3. 3 Serg. & Rawle, 562. In practice, it is a suit much resorted to, having many advantages over any other form of action. You either repossess yourself of your property, or obtain security to the amount of its value. To expose the plaintiff to the risk of losing his remedy, by the death of the defendant, would be to curtail, nay, in some cases to destroy his chance of justice; for unless the property remains in specie, in the hands of the executor, you would be deprived of all remedy, contrary to every principle of justice, and every rule of public policy. As we are not fettered by any decided case, and the action has been so essentially changed, the court are of opinion, that the suit does not abate by the death of the defendant in replevin.

Judgment affirmed.  