
    Hench et ux. administrators of Metzer, against Metzer and another, executors of Metzer.
    
      Monday, October 30.
    ^ ifthe defention of trover the suit^ti'ie action dies his executor to/cannot be" substituted in der act1 of
    I* seems, dli-a7rse’in which there was originally medy*than" trover, the tion misrht not die with the person.
    
      r In Error.
    A DECLARATION in trover was filed by Elizabeth Metzer, administratrix of Martin Metzer, deceased, in a suit brought by her in the Common Pleas of Cumberland county, to August Term, 1814, against Martin Metzer, which stated that the goods were the proper goods and chattels of the xn£es£a£e> an(l were casually lost by the plaintiff, as his administratrix ; and laid the conversion by the defendant on the 19th February, 1813. Elizabeth Metzer having afterwards mar- and Martin Metzer having died, a scire facias issued in the name of the original plaintiff and her husband, to substi£be executors of Martin Metzer as defendants in his bis place. When the cause came on for trial, after the coun- £ 7 sel ror the plaintiffs had opened the case, the Court intimated tbeir opinion, that they could not recover in this ac-which they considered abated by the death of the der , , „ ^ , fendants’ testator, Martin Metzer. The plaintiffs then suffered a nonsuit, with leave to move to take it off and have a new trial, and with liberty to have the question revised by the Supreme Court on a writ of error. The motion to take off the nonsuit was overruled, on argument, and the judgment of nonsuit made absolute.
    Metzger, for the plaintiffs in error.
    The only question is, whether the action of trover brought against Martin Metzer, deceased, abated by his death. By the 8th section of the act of 13th April, 1791, Turd. Dig. 207. it is provided that no suit shall be abated by the death of a party, when the cause of action doth by law survive. Now, though trover is in form an action for a tort, it is in substance an action for the trial of property, and the real cause of action survives. If trespass be brought against a disseisor who dies, although the action cannot be renewed at law, yet the profits may be recovered in equity. Haldone et ah 
      
      v. Duchés Executors, 2 Dali. 178. Upon the same principle, an action of trover, which is equitable in its nature, may be revived against the executors of the defendant. In the case of Hambly v. Trott, Administrator, Cowp. 372, whose authority has been contradicted, 2 Esp. Rf. P. 199. (JV. York edit.) it was indeed decided that trover would not lie against an executor for a conversion by his testator ; but this decision was pronounced after considerable doubts, and would not have been pronounced at all, if no other action could have been brought against the executor. In the present instance, no other action can be brought. If the plaintiffs fail in this suit, their remedy is atan end ; for the act of limitations will bar any other action. Nothing now stands in their way but form, and all forms which obstruct the course of justice, even where they are supported by decisions repugnant to reason, ought to be disregarded.
    
      Carothers for the defendants in error,
    said, that the conversion was a tort both in substance and in form. 1 Salk. 10. pi. 2. Crossier v. Ogleby. 1 Str. 60. ; and it had been expressly decided, upon great deliberation, that the action of trover died with the person. Hambly v. Trott, Administrator, Cozupi 372. Bernard v. Harvey, 3 Mass. Rep. 228. If the plaintiffs had no other remedy in consequence of the intervention of the act of limitations, it was then our fault in selecting a form of action subject to be abated by .the death of the defendant. If the property had been sold, an action for money had and received, might have been brought; if not, replevin.
   Gibson J.,

delivered the opinion of the Court.

If, by possibility, a case should occur in which there was originally no other remedy than trover, we would be sorry to say there should be a failure of justice, for want of a remedy in a form that, as the law now stands, may survive; but then the particular circumstances should appear. In ordinary cases, there can be no difficulty in reconciling justice to the strict rule of law ; for if the goods have specifically passed into, the hands of the executor, an action founded on the right of property, will lie directly against him, without reference to the testator; or, if they have been converted into money by the testator, an action for money had and received may be maintained. The only difficulty is in the case put by Lord' Mansfield in Hambly v. Trott, where the goods have been consumed by the testator; in which case the plaintiff may possibly have no action but what is founded in tort., excePt detinue, which, also, but for a different reason, does not surv*ve' The law is, however, too well settled to be questioned that the action of trover ordinarily dies with the perS0IK The whole matter was considered in Hambly v. Trott, by a Court as remarkable for ability as for its disregard of all forms which stand in the way of justice. After the decision in that case, little can be said, except that although we may suppose even more might have been done to get rid of the unjust doctrine of any remedy for compensation of an injury being lost by the death of the perpetrator ; yet, when such a Judge as Lord Mansfield stops short, succeeding Judges ought to pause. Where the plaintiff might have instituted an action against the testator, which could be revived against his executors, and yet has resorted to a perishable remedy, he has no ground of complaint that he can neither prosecute it, nor, by reason of the intervening of the statute of limitations, commence another immediately against the executors ; for it is his own fault, that he did not at first bring his action in the form best adapted to secure him against the loss of it by the contingency of the defendant’s death. Such appears to be the case before us. Perhaps, in no instance, is an action arising ex delecto exclusively the proper remedy, where the property of one has been converted to the use of another; but if it even were, it does not appear that the plaintiff could not, in this case, have had a suit in another form. It is of importance to preserve settled distinctions by adhering to .established forms, a departure from which can never be justified on the ground of mere inconvenience ; and although this principie should not be carried to an extreme, yet nothing short of a failure of justice will justify an interference. Not being prepared to depart from the precedent in Hambly v. Trott, we are of opinion that the judgment be affirmed.

Judgment affirmed.  