
    John Pitts, Executor, versus Moses Hale.
    The executor of a plaintiff m replevin, who dies pending the suit, shall be admi ted to prosecute.
    This was an action of replevin commenced by Samuel Pitts, the plaintiff’s testator, whose death was suggested upon the record of the Court below, and the present plaintiff was admitted to prosecute the action. After a verdict was found for the plaintiff in this Court at the sittings after the last October term, the defendant moved to arrest the judgment, because the said executor ought not to be permitted to prosecute this suit after the death of his testator.
    * And now, the counsel for the plaintiff contended [ * 322 ] that an executor may maintain replevin for the goods of the testator, though taken in his lifetime , and our statute 
       provides that in all cases, where the cause of action survives, executors and administrators of parties, dying pending the action, shall be admitted to prosecute or defend in such action.
    The defendant’s counsel declined arguing in support of the motion.
    
      Dana and Joseph Locke, for the plaintiff.
    
      Steams, for the defendant.
    
      
      
        Arundel vs. Trevil, 1 Sid. 81, cited in Esp. Dig. 375.—See also Cockerill vs. Kynaston, 4 Term. R. 277.—Hambly vs. Trott, Cowper, 372.
    
    
      
       1784, c. 32, § 10.
    
   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 . 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.]
     