
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Carson v. Bryant’s Administrators.
    The defendants pleaded, that as administrators, they were not liable tobe sued within nine months after the death of their intestate; and averred, that the action was commenced within that time. It was held, that such plea is good to actions founded on contract; and that actions founded on tort, do -not survive against the personal representatives of the party committing the injury.
    Action on the case for harboring a negro woman, the property of the plaintiff. It was proved at the trial, before Tkezevant, J., in Edgefield district, that the negro had been stolen from the plaintiff, and that she had come bona fide into the possession of the defendants’ intestate, of whom slie had been demanded, and who refused to deliver, her up to the plaintiff. After his death the negro was again demanded of the defendants, who also refused to deliver her up. This action was brought to try the right, and recover damages.
    The defendants pleaded in abatement, 'that the action had been commenced within nine months from the death of the defendants’ intestate,' contrary to the act of assembly of 1789, P. L. 494, which enacts, “ that no action shall be commenced against any executor, or administrator, for the recovery of the debts due bv the testator, or intestate, until nine months after such testator, or intestate’s death.” This plea was objected to by the plaintiff, as inapplicable and insufficient, this being ah action founded on tort to recover damages, and not to recover a debt due. But the judge overruled the objection, and held the plea to be sufficient.
    Goodwin moved to reverse this decision of the District Court, and contended, that this case was not within the letter or intent of the act of assembly, and that the act ought to be construed strictly, as it conferred a'particular privilege.
   Waties, J.,

delivered the opinion of the whole court, Wilds, J., absent. This action, which has been invented in this State, as a substitute for the action of trover, is founded in tort, and does not survive against the personal representatives of the parly who .committed the injury, according to the determination in the case of Hambly v. Trott, Cowp. 374, and the maxim of law, quod actio j/ersomlis moritur cum persona; and upon this ground the plaintiff ought not to be allowed to prosecute his action. JBut if the action be regarded in the light of an action founded on contract, or quasi ex contractu, the plea is certainly applicable.

Note. 1 believe the objection to the plea was informal, and not by way of demurrer. But the consequence would have been the same, if the plea had been domurred to for special cause, forasmuch as the unsoundness of the action wad matter of substance, which might be taken advantage of.

Motion discharged,  