
    John Barnard versus Samuel Harrington.
    In trover, the writ must abate by the defendant’s death; and the executor is not compellable to come in and defend.
    The declaration in this case contained two counts. The first was trover for a yoke of oxen; the second was upon the custom charging the defendant, as an innkeeper, with negligently keeping the plaintiff’s oxen, and permitting them to go at large, whereby they became wholly lost to the plaintiff.
    The action stood on the continued list, and now the' counsel for the plaintiff suggested that the defendant had died since the last continuance, and moved that his executor might be summoned to come in and take upon himself the defence of the suit.
   By the Court.

Without giving any opinion as to the second count, it is very clear that the executor cannot be compelled to defend an action for a tort, as trover unquestionably is. The writ is abated by the death of the defendant . 
      
       [1 Chitty, 78—102, 5th Lond. ed.—By the act of 1822, c. 110, it is declared that all actions of replevin and trover shall be taken and deemed to be actions of which the cause doth survive, and shall be prosecuted and defended to final judgment and execution, by and against the executor or administrator of any deceased person, in the same manner as they might have been by their testators or intestates respectively, during their lives.—Ed.]
     