
    The Executors of Middleton against Robinson.
    An action of trespass on tort, -will survive to a testator’s executors ; and although it does not survive against them, yet hyiuuiving the iort, and going for the 'value of the thing, assumpsit for money had and received, will survive as well against, as for, executors.
    THIS was a special action on the case, for the value of cattle, taken away from the plantation of the plaintiffs’ tes» tator, during the late war, and driven to the British garrison at Camden. In the declaration, was a count for money had and received.
    
    The defendant demurred to the action, and for cause of demurrer stated, that the suit was brought for a cause of action, which could not by law survive to the plaintiff, being in the nature of a trespass or toft. On joinder in demurrer, the question came on to be argued, whether this action could be maintained or not.
    Pringle, in support of the demurrer,
    contended generally, that this was a kind of injury, which, from its nature, was a trespass. It is a species of tort, which arises ex delicto ; one committed by force and against the peace, See. Therefore, the maxim actio personalis moritur cum persona, perfectly applies to it. That at common law, an executor could not bring trespass for a damage done to testator ; as for instance, the carrying away his goods and chattels in his life-time. 2 Bac. 439. And- therefore it was an injury which died with the party who received it.
    
      Bay, contra,
    laid it down as a general position, which he said was well understood and admitted, that an executor stood hi the place of his testator, and represented him in all his personal contracts, and therefore might regularly maintain any action in his right, which he himself might do. were he alive. He was aware, he said, that this might be confined to contracts, in contradistinction to torts and tres
      passes. But the statute of 4th Ediv. III. ch. 7. (made of force in this state) expressly enacts, “ That executors shall “ have an action against trespassers and wrong-doers, in “ taking away the property of testator in his life-time, to “ recover damages in like manner, as they, whose executors “ they be, should have had, if they were alive.” This statute alters the ancient common law, and under a proper construction of it, not only trespass and trover, but e*> eiy other action for recovery of personal property will lie ; for whenever any injury is done to the personal estate of the deceased, in which he is represented by his executors or administrators, in that case they may maintain an action on the case, &c. within the equity of the statute. De bonis a-.por-tatis in vita testatoris, 4-th Ediv. III. which gives an action of trespass for a wrong done to a testator in his lifetime. Cro. Eliz. 377. 1 Vent. 30. 4 Mod. 404. 1 Lord Raym. 40, 41. 1 Salk. 314. The maxim, “ actio person~ “ alls moritur cumpersona,” extends to wrongs and injuries of a different nature from injuries done to property; such as, assaults, batteries, slander, false imprisonment, escape against the sheriff, or the like, &c. There appears, however, a material distinction between actions for and against executors : for, in many cases, an executor within the equity of the statute of 4th Ediv. III. may maintain an action for an injury done to a testator ; whereas if it had been done by a testator, an action could not be supported against his executor, as coming within the rule of actio personalis, &c. For instance, if a sheriff suffer one to escape on mesne process, the executor of the plaintiff may maintain suit against him; because, the body of the prisoner, being a pledge for the debt, the executor might be otherwise without remedy, which is an injury to the goods of testator, and not to his person. But, in case of the death of the sheriff, the party could have no remedy against his executor, as it is personal neglect or injury which dies with him. Where-ever the cause of action is for money due, or contract to be performed, gain or acquisition of the testator, &c. the action survives ; but where it is a tort, or arises ex delicto, supposed to be by force, and against the peace, &c. there the action dies, as in trespasses, assault, batteries, &c. before mentioned. Other actions, however, may be substituted in their room, upon the very same cause, which do survive against executors. No action will lie against an executor, where the declaration must be qaare vi et armis et contrapa-cem, or where the plea must be not guilty, as in trover; for upon the face of the record, the cause appears to arise ex delicto, and all private injuries, as well as public wrongs, are buried with him. But in all these cases, where trespass, trover, or the like, would lie against a testator, another action will lie against his executor, by waiving the trespass or tort, and bringing the action of assumpsit for money had and received. For instance, an action against a common carrier, is for a tort or supposed crime. The plea is not guilty; therefore, it would not lie against an executor. But as-sumpsit will lie notwithstanding, for the value of the goods lost. So, if a man take a horse from another, and bring him. back again, trespass cannot lie against his executor, though it would against the testator, but an action for the use and hire will lie against the executor. Here, then, is the grand fundamental distinction, says Lord Jkansfeld. If it is a sort of injury, by which the offender acquires no gain to himself, at the expense of the sufferer, as beating, imprisonment, &c. there the person injured himself has only an action for a reparation in damages ; but where, beside the crime, proper
      
      ty is acquired, which benefits the testator, an action for the value of the property, shall survive against his executor. As if a man cut down trees, his executor shall not be liable for the cutting dawn, yet he is chargeable for the value of them. So far, therefore, as the tort goes, executors shall not be chargeable ; but wherever the tortious act belief is a testator or offender, his assets ought to answer. Cowp. 377. In the present case, the action is not for the trespass or of-fence of driving the cattle off, but for the value of them ; so that at common law, as the tort is waived, the action would lie as well for, as against executors. But the statute of Edw. III. expressly gives it to executors, though it is silent as to the action which survives against them ; and at common law this action would lie against executors for the va-i c i > iue ot the property*
    
      
      QJIac. 445. Cowp. 5To.
    
    
      
      9. Sac. 455.
    
      Cro. c. 297. 1 Boll. 921. 6 Mod. 126.
    
      Cowp. 375.
    
      Ibid. 375.
    
    
      Ibid. 375.
    
    
      4 Mod. 40J. Ld. Rayrn* 41.
    
      
      
        Vide Troids Collection of the laws of tins state, page 241. By an aelof the legislature, passed in 17Í2, all such livitish statutes as were confirmatory of tlio common law, or which secures the life, liberty, and security of the persons and property of the subject, and which w ere applicable to the situation of the then existing circumstances of the province, from ¿Magna Charla down to the reign of Queen June, wove extended to South-Carolina, leading out all such as were useless and unsuitable to the constitution and government of the same ; all which acts, and clauses of acts, so extended, are particularly mentioned in a schedule or list annexed to the said act. Amino others were ever admitted to be of force, except the act of Geo. XI. making lands liable in the colonies as chattels for payment of debts, and one or two others of general utility’, which, by construction, ha\e been considered as of force here.
    
   The Court.

The common law gives no remedy whatever to or against executors for torts, or trespasses, &c. But the statute of Edzu. III. enables executors to bring those suits for injuries done to their testator. So that trespass would lie in this case. But even at common law, by waiving the tort, and going for the value of the property, the action of assumpsit survives as wellfor as against executors.

A respondeos ouster was ordered, and the case went afterwards to the jury to ascertain the value of the cattle.  